Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.
*Eleanor Gartstein
The Second World War saw the Nazis carry out the largest scale of art and cultural property plundering in history. It was not until fifty-three years after the war ended, however, that the first international agreement specifically addressing Nazi-era restitution was realized. The Washington Conference on Holocaust Era Assets was held in 1998, resulting in eleven agreed upon Principles of Nazi-Confiscated Art. These principles have since served as the guiding global framework for ownership disputes arising from the Nazi-era.
The decades-long delay came alongside 1998’s Nazi War Crimes Disclosure Act, implemented in response to strong calls for the declassification of government records concerning Nazi activity. As the public gained access to over 8.5 million pages of records, the “largest congressionally mandated, single-subject declassification effort in history,” many victims and heirs gained the necessary documentation to move forward with their claims.
The principal aim of the Washington Principles is the pursuit of “just and fair” solutions. This key phrase, which appears twice in the principles, unfortunately suffers from significant ambiguity. Principle 8 recognizes this, conceding that each “just and fair” solution can vary according to specific case circumstances. This is where Principle 11 refers to the need for a designated forum to assist in addressing these variations, encouraging the development of alternative dispute resolution mechanisms at a national level.
Given the Washington Principles’ non-binding status, out of the forty-four countries in attendance at the Washington Conference, only five have since made substantive moves toward effectuating Principle 11. The five nations with existing designated commissions are Austria, France, Germany, the Netherlands, and the United Kingdom.
The Existing Commissions
Austria was the first country to make concerted efforts towards Nazi-era restitution, establishing the Commission for Provenance Research in February of 1998, even prior to the Washington Principles, to investigate their public federal collections. The day after the Washington Conference concluded, Austria also established their Art Restitution Advisory Board (the Beirat). The Commission and Beirat now work closely together, forwarding restitution recommendations to the Federal Minister for a final decision. The Federal Minister is empowered to do so under the Art Restitution Act, which was also enacted in 1998 to authorize the return of objects.
Not long after, in September of 1999, France created the Commission for the Compensation of Victims of Spoliation That Have Occurred Due to the Anti-Semitic Legislation in Force During the Occupation (CIVS). The CIVS, now called the Commission for the Restitution of Property and the Compensation of Victims of Anti-Semitic Spoliations, has expanded several times since. Originally bound to cases committed in France from 1940 to 1944, the CIVS is now competent to advise on anti-Semitic spoliation in any country influenced by Nazi Germany between 1933 and 1945, if that cultural property now resides in a French public collection. In February of 2024, a new law went into force finally enabling restitution from French national holding institutions. This was previously barred by the principle of inalienability, which prohibits the deaccessioning of cultural property held in the public domain.
The United Kingdom established its Spoliation Advisory Panel (SAP) in 2000 to hear claims on cultural property lost from 1933 to 1945, now held in a national collection. Given the United Kingdom was never occupied by the Third Reich, cases tend to focus on problematic provenance for pieces that were later imported to the United Kingdom. Even with the SAP’s establishment, the United Kingdom was not able to actually effectuate restitution until 2009. The Holocaust (Return of Cultural Objects) Act was passed that year to confer power on museums to deaccession items on certain grounds related to the Nazi era. The law was originally valid for 10 years only, but a 2019 amendment removed the ten-year limit to enable future claims. Recent efforts also show progressive signs of reducing the United Kingdom’s otherwise steadfast barriers to removing property from national collections.
The Netherlands took action in 2001 to create its Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War (Restitutions Committee). In cases involving artwork held by the Dutch state, the Restitutions Committee presents non-binding advice to the Minister of Education, Culture, and Science. Alternatively, for independently held artwork, the commission issues binding advice between private parties who choose to go through the panel as an alternative dispute mechanism.
Until this year, Germany’s Beratende Kommission had from its creation in 2003 operated under an applied theory of subsidiarity, which encourages decisions be made at a local level rather than by a central authority. This meant the commission would issue non-binding recommendations only where a claimant and museum first attempted to reach a bilateral settlement, failed to achieve that settlement, and then jointly agreed to submit their case. This limitation’s practical effect led to most disputes never being heard at all. However, in January, Germany approved a major reform in recognition of this, introducing a new tribunal, the Arbitration Court for Nazi-Looted Property. The new system will involve a binding, unilaterally accessible arbitration process.
Regional Developments
This move by Germany is representative of a larger, continuous push to advance restitution measures. The sheer creation of commissions by Austria, France, Germany, the Netherlands, and the United Kingdom all demonstrate a sincere effort to carry out the aims put forth at the Washington Conference. Given civil law jurisdictions in Europe tend to afford protection to good-faith buyers in cases of stolen property, the presence of commissions can be especially impactful to ultimate ownership outcomes. Were it not for the establishment of these commissions, it is likely that most claims would be otherwise dismissed on statute of limitations grounds.
While national-level forums bring great value, claims involving multiple nations can encounter more friction when faced with structural inconsistencies. In efforts to facilitate greater cross-border harmony, the European states reconvened at the 2017 London Conference, titled “70 Years and Counting: The Final Opportunity?” The given title stressed that even decades later, the response to Holocaust Era Assets remained inadequate. Accordingly, this Conference was predicated on the idea that it “not become simply another set of lukewarm promises.” While the 2017 London Conference acknowledged the structural differences between the committees, cooperative barriers have persisted.
In 2019, the five countries established the Network of European Restitution Committees on Nazi-Looted Art, which aims to link the existing commissions to enable information sharing, joint action filings, and align endeavors. In the same year, a guide was published to aid both researchers and claimants in understanding the workings, and differences, of each commission. The Network maintains that “fair and just solutions for the spoliation of artwork can only be made effectively at international level: the mobility of looted cultural property adds to the geographic dispersal of victims.”
International Developments
This persisting need to combine efforts on a more global scale has prompted multiple international follow-ups to the Washington Conference. The first, in 2009, produced the Terezin Declaration on Holocaust Era Assets and Related Issues, which recognizes that a substantial portion of property has yet to be restituted or compensated and explicitly urges those nations that have not already done so to establish mechanisms that can better assist claimants.
Additionally, the Terezin Declaration asserts that restitution or compensation should be “expeditious, simple, accessible, transparent, and neither burdensome nor costly to the individual claimant.” The much more recent 2024 Best Practices for the Washington Principles on Nazi-Confiscated Art, procured fifteen years after Terezin, continues to stress the need for appropriate arbitration mechanisms.
“Countries are encouraged to create an independent expert body whose composition may be the states’ responsibility, to which unilateral access is available that can adjudicate cases of art and cultural property and arrive at or recommend a binding or non-binding decision (for example, the use of commissions in Austria, France, Germany, Netherlands, and the United Kingdom). Such bodies should have balanced, expert, and representative membership. Use of alternative resolution mechanisms is encouraged to avoid litigation.”
While the Terezin Declaration and the Best Practices reflect continued, good-faith efforts, they also demonstrate that progress has been slow. Even so, the revisitations have instituted change and kept Nazi-era restitution at the forefront of conversations. For example, Germany’s shift this year to allow for unilateral appeals responds to the Best Practice’s call for claimants to have access to panels, even if the current owner does not consent. This illustrates major framework adjustments remain not only ongoing, but achievable.
Conclusion
With this year marking the 80-year anniversary since the end of World War II, the issue of Nazi-era restitution has received varying degrees of attention globally. In the many places where victims and heirs are restricted to seeking restitution through the courts, contested ownership is unlikely to result in the aim of “just and fair” solutions as set in 1998. The prospects of existing commission frameworks can serve as a guide for the creation of new panels in countries that have yet to participate. Their limitations can also serve as a lesson into what should be avoided and amended. Irrespectively, the global displacement of art and cultural property resulting from the Nazi-era demands collaborative efforts across borders.
* Eleanor Gartstein is a second-year law student at the University of California, Berkeley School of Law. She holds a B.B.A. in International Business and a B.A. in Art History from the University of Texas at Austin. Her academic interests include international cultural heritage policy, art market regulations, restitution efforts, and museum issues.
