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Art Theft and Modern Restitution in International Law

Credit: Andrew Neel | Pexels

There is a long history of international debate over the repatriation of culturally relevant art. Rooted in global perspectives of post-colonial morality and national identity, today, this issue centers on two important considerations: the legal frameworks of the modern international system and alternative mechanisms that provide other potential avenues of dispute resolution. While there are myriad arguments in favor of returning stolen artworks back to their countries of origin, no true international legal obligation exists for the return of any such property without a foundation in key international conventions and treaties. But do these historical agreements really obligate all major powers to repatriate cultural artworks to their national heritage sites? Or are there more efficient alternative mechanisms for the return of such art?

First, a review of international treaty art law.

Complex Evolution of International Treaty Art Law

Until the late 19th century, jus praedae, or “prize right,” was informally recognized as the international standard. This phrase meant that the winning army or nation could seize and destroy the property of an enemy after a conflict. Dating back to the time of the ancient Romans, this post-victory predation of the losers’ wealth was an institution recognized on the basis of a “just, fairly declared war” and allowed “plundering… [as] an actual method of acquiring ownership… [of] the enemies’ movables.” This early approach to international law was, in the absence of legal agreements, a pragmatic justification for the historical wealth transfer that occurred after military engagements, predicated on a declaration of hostilities rather than unannounced raiding.

The Brussels Declaration (1874) was well ahead of its time. In response to Napoleon’s successful European campaigns, which seized numerous national treasuries and private estates, this first unsuccessful codification of the laws of war remained unratified; however, it made specific references and carve-outs protecting private property. A few key provisions are relevant to our discussion. Article 6 allowed for the taking of the occupied State’s movable property if useful “for the operations of war.” However, Article 39 forbade pillaging. Article 8 declared that “​​[a]ll seizure or destruction of, or wilful damage to… historic monuments, works of art and science should be … subject [to] legal proceedings.” Whereas Article 13(g) expressly declared that “ destruction or seizure… not imperatively demanded by the necessity of war” was unlawful. This failed declaration set the foundation for future international agreements that sought to end prize rights and codify protections for certain kinds of chattel and buildings irrelevant to warfare.

The 1907 Hague Convention expanded on the Brussels Declaration and included near-identical provisions for protecting relevant art and personal property. It obliged participant nations—and later all nations through customary international law—to “spare… buildings dedicated to religion, art, science… charitable purposes, historic monuments, [and] hospitals… [from bombardments] provided they are not being used at the time for military purposes” (Art. 27). It also mandated they protect private property from confiscation (Art. 46). These agreements made no mention of cultural property.

Enacted in the wake of the widespread destruction of cultural institutions and treasury sackings during World War II, the 1954 Hague Convention expressly protects cultural property during armed conflict. This agreement, influenced heavily by the 1943 London Declaration, which invalidated all Nazi property transfers of seized artworks, was adopted by over 100 countries and prescribed measures to avoid the destruction of art and other cultural heritage during wartime. While there are a few key differences between the 1907 and later Hague Conventions, the most impactful changes for our review are the First and Second Protocols to the 1954 Convention.

The First Protocol directly regulates the circulation of cultural property in times of war by requiring any occupying nation to prevent the exportation of such property. But in the case of prior exportation, this protocol mandates the occupier return the property and fairly compensate the purchaser, if applicable. It significantly established that this return is unconditional and has no relevant time bar for bringing such a claim. This is 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, updated the Convention in an attempt to curb criminal acts against cultural property towards the end of the 20th century. It complements the 1954 agreement with a stronger approach developed by the recent evolution in international humanitarian and property protection law. Chapter 3, Articles 10 through 14 define the “enhanced protection for cultural property of the greatest importance for humanity” and describe the requirements for the grant and forfeit of such additional protection. These protected heritage pieces garner extra safeguards as this 1999 update codifies tangible sanctions that will be imposed on nations in breach of their obligations. It goes on to outline the prerequisites and responsibilities relevant to this reactive enforcement mechanism, specifically enshrining criminal liability for actors who intentionally target, use, destroy, pillage, or vandalize cultural property under these enhanced protections.

Following the international movements for independence and the growing desire to recover cultural objects seized by colonial powers, the 1970 UNESCO Convention was pushed forward by young nations as a way to combat the illegal trafficking of cultural property. Based on the principles of prevention, restitution, and international cooperation, this agreement fought against the black market for cultural artifact theft that had grown in Europe. Unlike its predecessors, this was the first international convention that dealt directly with art stolen outside the traditional bounds of warfare.

It made illegal the “import, export or transfer of ownership of cultural property effected contrary to the provisions adopted” in Article 3. In Article 5, it obliged national sovereigns to “set up… national services… for the protection of the cultural heritage” including increased public education. These and other provisions created internal and external cooperative measures that, in the absence of warfare, laid down an unprecedented structure for the restitution of cultural property through an international commitment to facilitate claims of other nations. It was later expanded upon in 1972 with the well-known creation of the UNESCO World Heritage List, which enumerated locations of “outstanding value to humanity” specifically named as protected sites under this agreement.

The final international agreement relevant here is the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, which ended the issue of statutes of limitations-barred restitution claims and entitled a good faith purchasers of such objects to fair compensation for their loss.

Now that we have laid the groundwork for complex art restitution litigation, let’s address the elephant in the proverbial museum collection.

How Difficult is Enforcement of this Legal Framework?

Without these conventions and treaties, there would be no international legal obligation for the repatriation of stolen cultural and artistic property. However, these agreements are only as useful as the forum in and purpose for which they are brought. In particular, they have two major shortcomings. First, they are not self-executing. In other words, they will have no effect if a nation’s domestic laws do not affirmatively implement them. Second, they do not apply retroactively. While the intentions of international actors entering into a treaty can often be muddied by different historical accountings, in any case, each treaty need be examined individually to determine whether such retroactivity applies. While some of these treaties lay their ideological intentions behind the protection of art stolen in WWII, any litigation to compel previously looted art across international borders without domestic cooperation will have to wade through these mires of treaty interpretation.

When international treaties can compel return, international litigation can often be arduous and long-lasting.

Cassirer as a Case Study

Claude Cassirer filed suit against the Thyssen-Bornemisza Collection Foundation, an instrumentality of the Kingdom of Spain, in 2005 over ownership of Camille Pissarro’s Rue Saint-Honoré, Après-midi, Effet de Pluie. Cassirer v. Kingdom of Spain, 461 F. Supp. 2d 1157, 1161 (C.D. Cal. 2006). The work was stolen from Claude’s Jewish grandmother amidst her escape from Nazi Germany and had, through a series of exchanges, ended up in the Foundation’s museum. Id. This would come to be one of the longest running cases of Nazi-looted art restitution in American judicial history, remaining unresolved to date. The specific issue that brought this suit before the Supreme Court of the United States is “what choice-of-law rule a court should use to determine the applicable substantive law in [a Foreign Sovereign Immunities Act] suit raising non-federal claims.” Cassirer v. Thyssen-Bornemisza Collection Found., 142 S.Ct. 1502 (Apr. 21, 2022). At the heart of the case, however, is a painting that no one disputes was stolen by Nazis in Germany, hanging in a Spanish-owned museum for the last two decades, whose ownership is being decided by the U.S. court system.

Under Spanish Law, one may acquire good ownership over personal property through adverse possession. No such law exists in the US; such acquisition of property would be considered theft. This is the result of the “irreconcilable and unbridgeable gulf” between the common law and civil law. US law, apart from Louisiana, has a Roman lineage; nemo dat quod non habet, translates to “no one gives what he does not have.” This is the common law understanding. Civil law instead seeks to protect a good faith, bona fide purchaser, and in some states even a bad faith purchaser, after a period of time by granting good title. Countries who derive their legal system from the 1804 Napoleonic Civil Code follow this line of thinking. The fate of the Cassirer case depends upon which substantive law is to be applied, US or Spanish law.

Spain is a signing member of the Washington Conference Principles and the Terezin Declaration, two agreements that include an intent to build alternate legal processes to aid in the recovery process and facilitating just and fair solutions expeditiously based on facts and merit for the restitution of Nazi-confiscated art. The parties in Cassirer have been in litigation for twenty years, including a pattern of appeals that resulted in a hearing by the Supreme Court of the United States. This calls into question the purpose of these non-binding agreements, when it has been shown that the agreement is only as strong as its weakest members. If Spain was abiding by these principles, the case very likely should have been settled outside of the court system. The frustration over sovereigns refusing to abide by their moral commitments is a theme seen across restitution commentary, and is even noted in the case’s judicial opinions.

Judge John Walter concluded the 2015 district court Cassirer opinion by recommending that the Foundation “pause, reflect, and consider whether it would be appropriate to work towards a mutually-agreeable resolution of this action, in light of Spain's acceptance of the Washington Conference Principles and the Terezin Declaration, and, specifically, its commitment to achieve ‘just and fair solutions’ for victims of Nazi persecution.” Cassirer v. Thyssen-Bornemisza Collection Found., 153 F. Supp. 3d 1148, 1168 (C.D. Cal. 2015). Following the Supreme Court ruling, the case returned to him in 2019 and his disappointment was evident. He stated that the Foundation’s refusal to return Rue St. Honoré to the Cassirer family was “inconsistent with the Washington Principles and the Terezin Declaration. However, the Court has no alternative but to apply Spanish law and cannot force the Kingdom of Spain nor [the Foundation] to comply with its moral commitments.” Cassirer v. Thyssen-Bornemisza Collection Found., No. CV 05-3459-JFW (EX), 2019 WL 13240413, at *26 (C.D. Cal. Apr. 30, 2019).

Taddheus J. Stauber, an attorney with the global law firm representing the Foundation also happened to participate in the drafting of the Washington Principles. He said that the agreement “is also designed to encourage respect for the laws of other countries. We cannot impose US law around the world. Imagine a Spanish court accepting a claim against The Smithsonian, for example. It’s unthinkable.” The application of state choice-of-law rules in suits brought under FSIA introduces the possibility, or even likelihood, that a foreign state or instrumentality could face varying rulings and interpretations for the same issue across the different states. Where the court systems fall under the Judicial branch of our government and foreign relations fall under the Executive branch, this ruling creates potential for conflict. The Cassirer case is a prime example of why alternative dispute resolutions are necessary for justice.

Other Mechanisms for Return

The Cassirer family may have spent decades in court, but there are more efficient ways of correcting these historical injustices in the modern art world. One of the simplest methods to avoid such conflicts are through alternative dispute resolutions (ADRs). ADR is “any method of resolving disputes without litigation…[like] mediation, arbitration, conciliation, negotiation, or transaction.”

1. Alternative Dispute Resolution in Restitution

Alternative dispute resolution is commonly used in the world of art restitution. One example is the famous, or possibly infamous, case of Maria Altmann seeking the return of her uncle’s Gustav Klimt paintings. After the works were looted by the Nazi’s, they ended up in the possession of the Austrian government. This case was also brought before SCOTUS, but was ultimately settled through mediation. Altmann agreed to mediation in Austria before a three-person panel and was awarded all paintings. In another case, the Cerruti Foundation of Turin held possession of a Renaissance Madonna that was looted from the Jewish art collector, Gustav Arens. The Cerruti Foundation entered into a financial settlement with Arens’ heirs and kept the painting.

In another case, a French holocaust survivor, Lèone Meyer filed suit against the Board of Regents for the University of Oklahoma for a different Pissarro painting, Shepherdess Bringing in Sheep, which her family lost during the 1940 Nazi invasion of France. This case settled out of court with Meyer agreeing to turn ownership of the painting over to the Oklahoma museum in exchange for an unconventional visitation schedule. The painting was to be displayed on a three-year rotation between the University of Oklahoma museum and any French institution of their choice, as long as the painting eventually finds a permanent home in France. Meyer put forward $500,000 towards the costs associated with the rotation and the museum dismissed its claim for legal fees. ADRs allow for creativity in the pursuit of a just and fair solution and a large portion of ADR falls within the realm of negotiation.

2. Voluntary Negotiations

Given the inherent roadblocks to international litigation where there is an insufficient basis in international treaty law, a more reasonable modern mechanism for restitution is through voluntary negotiations.

The Benin Bronzes as a Case Study

Meant to encompass the several thousand pieces of art looted from Benin City by British Imperial soldiers in the Benin Expedition of 1897, the term “Benin Bronzes” refers to a now-scattered collection of artworks that previously decorated the royal palace in the Kingdom of Benin. Not to be confused with the neighboring country of Benin, the palace and the surrounding territory of this once impressive kingdom lies almost entirely within the Edo State of modern Nigeria.

Established in the 11th century, the Kingdom of Benin was ruled by the Oba, or Edo king, for approximately 700 years before being annexed into the British Empire shortly after the 1897 invasion. The busts, portraits, jewelry, sculptures, and small figures created by Edo artisans from as early as the thirteenth century—using iron, wood, ivory, terra cotta, and most notably, bronze—portrayed the persons and events relevant to the Oba’s court. The collected works of these craftsmen, created over generations, once adorned the buildings and courtyards of the palace but were later sold off to the British Museum and other collections across Europe.

Today, various institutions worldwide have announced decisions to return these heritage pieces voluntarily from museum collections to their place of origin. The British Museum in the United Kingdom remains the largest and most contentious owner of the Benin Bronzes in the world as international fervor for repatriation grows.

Driven by shifting international sentiment due to the growth of social media, the previously unsuccessful claims for return, filed since the 1930s, have gained a widespread audience due to contemporary protests and modern ethical standards. This “[d]igital transformation… make[s] it harder to hide objects in collections, silence violent histories… and invoke pretexts or delay tactics.” Gone are the days of jus praedae as military conflicts and instances of looting are documented and analyzed by pundits and governments worldwide who have strong moral investments in the protection of people, property, and culture. Museums, historically displays of influence and conquest, have embraced self-reflective perspectives and reconsidered historical perspectives through provenance research to bring new understanding to decrepit collections.

Restitution of colonially-seized art could be a major step towards bridging the historical inequities of the previous centuries of violence perpetrated upon the global south and potentially kickstart a “cultural renaissance on the continent… [with] the creation of new museums… which challenge the traditional narrative that objects cannot be adequately preserved or guarded in non-Western contexts.”

The negotiation-based institution at the forefront of this discussion is the Benin Dialogue Group. Although that group was not always pro-return, it now seeks to restore ownership of the Benin Bronzes to their native country. This consortium of European museums, which claim ownership of the Benin Bronzes and was formed in 2010, engages with Nigerian authorities in discussions regarding the future of these artworks. While originally established as a European response to growing fervor for return—which appeared to manage expectations and establish a permanent rotating display through Benin City on the basis of European loans—this group has evolved into a meaningful discussion between the current European owners and three distinct representatives from Nigeria: the National Commission for Museums, the Edo State Government, and the Royal Court of Benin. The mission of this organization “go[es] beyond the state-centric frame of the 1970 UNESCO Convention… and involve[s] multiple stakeholders: government officials, museums…communities …descendants of former local rulers or private actors with a link to the objects.”

Following the release of a 2018 report commissioned by French President Emmanuel Macron, which assessed the history of publicly owned French collections of African artworks originating in questionable acquisitions, the “French president announced the restitution of African art[i]facts, and… prompted … plans for a "decolonization" of museums in a number of countries.” As of December 2022, museums in Scotland, Germany, the United Kingdom and the United States—to name a few—have committed to returning numerous pieces to Benin City, and other African nations of their origin. Even though this process of return to the people of Nigeria poses many difficulties due to the change in the nature of the sovereign, laws of the territory, and national issues such as corruption, the widely-supported movement for the return of the Benin Bronzes to the people of Nigeria is a major achievement of international relations that brings hope for the future of art restitution claims.

Final Thoughts

100 years ago, the reality of colonial or post-conflict powers returning previously looted or illegitimately purchased works of cultural art from across the world seemed an unrealistic dream, but today, ADR and voluntary negotiations appear to be increasingly effective approaches for precipitating the return of these important cultural artifacts. Perhaps soon, the growing international trend of rectifying historical wrongs will realize the long-awaited repatriation of such pieces to their cultural homes across the planet.

*The views expressed in this article do not represent the views of Santa Clara University.


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