Feb 21, 2025 | HALO x ILJ Collaboration, Online Scholarship
Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.
*Fahim Abrar Abid
A. Introduction
Cultural heritage is the reflection of a nation’s or community’s sheer identity, inherited from their predecessors. It can be a collection of sites or traditions that bring together all the values of different cultures around the globe. Crimes affecting such cultural heritage, whether tangible or intangible, are a direct threat to a group of people’s emotions, sentiments and dignity. In addition, cultural heritage upholds self-determination and is recognized as closely connected with peace.
Intentionally directing attacks on such a significant aspect of humankind means an attack on the existence of people, resulting in long-lasting horror of trauma, as evident from the ancient history of the blazing of the Temple of Artemis in 365 BCE, to in the comparatively recent attacks in Mali, Iraq, Syria, Libya and Afghanistan. Hence, to protect humanity from a degrading act like the destruction of cultural heritage, international law has given it an introspective emphasis from time to time–particularly under international criminal law (ICL) from the Nuremberg Charter to the ICTY Statute, ECCC Law and most prominently in the Rome Statute. The ICL framework to protect cultural heritage has been evolving in a significant way, as evidenced by the conventions and landmark case law, but it is somewhat falling short of protecting cultural heritage as a whole, and more needs to be done to ensure better protection.
To critically examine the issue, this article will first lay the foundation by providing an account of the importance of cultural heritage for humankind (connecting with section A) vis-à-vis the ICL framework protecting cultural heritage in section B. Then, in section C, this article will briefly explain the conceptual framework of constituting the crime of “destruction of cultural heritage” under ICL. Finally, this article will conclude in section D by highlighting the (in)effectiveness of the legal development around cultural heritage relative to its importance on the basis of the international instruments, case law and scholarship discussed in section A, B and C.
B. Importance of Cultural Heritage and International Criminal Law
Cultural heritage is not only the materialistic value of an object but “the meaning attributed to it” by any individual as well as relevant communities. The traditional motivation for attacking cultural heritage, to destroy the opponent’s morale as a tool for undermining their identity and legacy, ipso facto, reflects the importance of cultural heritage in individuals’ lives. Moreover, the preservation of cultural heritage is considered inter alia a determining factor as well as a resource for sustainable development by the United Nations Educational, Scientific and Cultural Organization (UNESCO).
Nevertheless, this article attempts to capture the importance of cultural heritage through the lens of legal development over the years. Firstly, the aspiration of ICL was founded on the recognition “that all peoples are united by common bonds, their cultures pieced together in a shared heritage and concern that this delicate mosaic may be shattered at any time”, as stated in the preamble of the Rome Statute and scholarships. Secondly, the Rome Statute, which is the core international legislation concerning the ICL, expressly recognized “destruction of cultural heritage” as a crime. However, since not all the crimes committed during a war qualify as a war crime, not all the attacks directed against cultural heritage are protected by ICL. Nonetheless, the Rome Statute has broadened (perhaps upheld) the scope of protecting cultural heritage by including religious, educational, scientific, hospital and charitable purpose buildings in addition to artefacts and historical monuments in both articles 8(2)(b)(ix) and 8(2)(e)(iv), covering international and non-international armed conflicts, respectively.
Through practice over the years, the protection of cultural heritage has gained the status of an erga omnes obligation because directing an attack on any cultural heritage is an attack on the entire international community, and all State parties have a responsibility to protect cultural heritage. Due to the erga omnes obligation status, all states have a legal interest in its protection and have standing to bring cases against violation states. Furthermore, the unanimously adopted Security Council Resolution 2347 has also reemphasized the State’s primary responsibility to protect cultural heritage.
The importance of cultural heritage is also reflected in scholarly discussion as well as legal precedents that provide an interpretation that the destruction of cultural heritage not only is a war crime but also can constitute a ‘crime against humanity’ when the destruction took place as part of a widespread attack. While the International Court of Justice (ICJ) decided on the Genocide Convention case that the destruction of cultural property cannot be considered a genocidal act, the ICJ held in the Krstic case that such biological destruction can be considered as “evidence of an intent” to physically destroy a group.
Finally, the importance of cultural heritage has been observed in the judgements of the ICC, ICTY and International Military Tribunal (Nuremberg Tribunal), mostly as part of broader armed conflict. However, the most prominent is the Al Mahdi case, which is the sole case that has the destruction of cultural heritage as the principal charge. The perpetrator was found guilty of destroying mausoleums in Timbuktu, Mali and was sentenced to 9 years. Also, the ICC recently prosecuted Al Hassan, who was initially inter alia charged with the destruction of cultural heritage, although the final sentence does not include this charge. Concerning ICTY, the landmark cases are Strugar, Blaškić, Kordić and Jokić, which prosecuted perpetrators for illegally destroying and looting cultural heritage. Lastly, the landmark Rosenberg case from the Nuremberg Tribunal can also be considered as involving the destruction of cultural property since it includes the systematic looting of the museums, palaces and libraries in the occupied territories of the U.S.S.R.
C. Conceptual Framework
Although the Rome Statute came into force only in 2002, the legal framework protecting cultural heritage has constantly developed since the 1899 and 1907 Hague Conventions that urged the protection of religious, educational, scientific, hospital and charitable institutions “as far as possible.” However, the scars of World War II inter alia widespread destruction of cultural heritage exposed the need for a more robust framework, so the 1954 Hague Convention was adopted, including provisions for sanctioning violations of the convention. Later developments were the 1977 Additional Protocol I and Additional Protocol II of the Geneva Convention 1949, expanding the protection of cultural heritage in international and non-international armed conflict. Along with these key ICL developments, significant contributions from the UNESCO Conventions and ICTY practice emphasizing the protection of cultural heritage as a customary international law have ultimately shaped the present-day Rome Statute framework.
To delve into the importance of cultural heritage in international law, it is essential to understand how and when an act constitutes “destruction to cultural heritage” under international criminal law. Destruction of cultural heritage has precisely been classified as a “war crime” under the Rome Statute. The first and foremost criterion for an act to be considered “destruction to cultural heritage” is thus to meet the threshold circumstances of a war crime, which needs to be during the existence of an armed conflict, either international or non-international character. Secondly and most importantly, there must be a “closely related” “nexus” between the direction of the attack on cultural heritage and the existing armed conflict as established in the case laws of the International Criminal Tribunal for Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR).
A classic example would be the illegal destruction of the Bamiyan Buddhas by the Taliban in Afghanistan, which did not constitute a war crime because it was not done as part of the conflict going on in the country back then. Nevertheless, it is also important to note that if the illegal destruction of cultural heritage took place as part of a “military objective,” it would not constitute a war crime ipso facto. The term ‘military objective’ is defined in Art. 52(2) of 1977 Additional Protocol I, as ‘objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.’ This is a customary rule of international humanitarian law and its distinguishment in the context of cultural heritage was further clarified by the ICTY in Kordic and Cerkez (para 92), upholding customary rule 9, that historical monuments, places of worship and cultural property are prima facie civilian objects, as long as they don’t serve the military purposes.
In addition, the contemporary development of international law is another vital determining factor of the crime of “destruction of cultural heritage.” For example, the bombing of the Temple of the Tooth (a world heritage site) by Tamils in Sri Lanka during their civil war could have been qualified as a war crime had today’s customary international law been the same back then. Lastly, the Rome Statute does not have jurisdiction over any such act like the Sri Lankan example (1998) that took place before 2002. Similarly, the Rome Statute cannot enforce its jurisdiction over the states who are not party to the Statute.
D. Conclusion and Looking Ahead
Despite the broadening scope and all these existing mechanisms, the world is witnessing the destruction of cultural heritage in Palestine, Ukraine and Sudan. These incidents expose the ineffectiveness of the current ICL framework derived from the politics of law, the lack of willingness of the State to refer such cases, and, to some extent, the principle of complementarity. As 3 of the ‘P-5’ States are not parties to the Rome Statute, they do not fully acknowledge inter alia the obligation, under the ICL framework, to protect and not destroy cultural heritage, which reflects human identity, dignity and self-determination. Therefore, the international community must strengthen its commitment to protecting cultural heritage by enhancing international cooperation, ensuring the political will to enforce ICL, and possibly revisiting the principle of complementarity to allow for more robust international intervention when national jurisdictions fail to act.
*Fahim Abrar Abid is an Erasmus Mundus Scholar of International Law of Global Security, Peace and Development with a specialisation in Human Rights at the University of Glasgow, Institut Barcelona d’Estudis Internacionals and University Tartu. He is also the Coordinator (Head) of Bangladesh Campaign at Global Human Rights Defence—a UN ECOSOC NGO.
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Feb 21, 2025 | HALO x ILJ Collaboration, Online Scholarship
Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.
CHEN Jun* and Danny Friedmann**
Sacred art is imperative for the sustainability of a collective identity. Its protection via both intellectual property and cultural heritage rights is not well aligned to this objective. This article uses the Balinese Sanghyang Dedari as a case study to demonstrate how elements of this sacred trance dance were transformed by a German and an Indonesian into the secular Kecak dance in the 1930s, which is presented and perceived, incorrectly, as the quintessential traditional Balinese dance, protectable via cultural heritage rights.
The sacred dance Sanghyang Dedari has been passed from generation to generation. It is thought to predate Hindu influences on the island. The dance can only be performed within the confines of the temple. Its function is to mediate between gods and humans (Stepputat). The dancers include two prepubescent girls who enter a trance state, embodying spiritual entities to ward off negative forces and epidemics. Walter Spies, a German painter and musician who arrived in Bali in 1927, witnessed the trance dance. He and his local partner, Wayan Limbak, adopted some musical and dance elements, namely the male chant and some pengecak movements (body and hand movements while seated in a circular formation), based the storyline on the Hindu epic Ramayana, and provided the choreography to make it into a dramatic spectacle, accessible for mainly Western tourists (Stepputat).
The Kecak dance, performed in the Gianyar region of Bali (Stepputat), gained worldwide fame. The spectacle is largely linked to Spies’s knowledge of both the Western gazer and the observed “Other.” Similar to a chef who creates an “exotic” dish with some traditional ingredients but catered to the specific tastes that his clients are acquainted with, it serves exoticism with some familiarity. However, the audience is in awe and regards it as an authentic spiritual dance. In 2021, the Kecak dance was performed by twenty-five cak groups on secular performance stages. Lim points out the commercial and Orientalist transformation of Spies’s Kecak dance (Lim), especially with the increased number of half-naked men and emphasis on sensual scenes, which signifies Bali as the “Other” and a sexual subject to be gazed at.
John Dewey, who defined art as experience, believed that the creation and appreciation of art are integrated with how we perceive ourselves and deal with the world around us. Artists often need to anchor themselves in the process of creation. Before expressing themselves, they need to deeply explore elements that may reflect themselves or the group. To convey such content to others through the language of art, one must incorporate these elements into their artistic creation. By doing so, they can, to some extent, recreate an experience—whether visual, auditory, or tactile—and ultimately forge a meaningful connection with others. According to Dewey’s theory, such connections possess a transformative power (Goldblatt).
Spies, as a well-cultivated artist from Europe, before producing any form of cultural representation of Bali, needed to establish his own perception of the originals, imagine himself as an audience, and then create a cultural expression for the gazer. This is to see the “Other” via a gazer’s eye, which we call a double-Orientalism cultural representation. However, both the Balinese and outsiders gain the sacred spiritual Bali experience via this representation. Some will eventually internalize it as part of the elements that construct their identity, which is neither constructive nor preferable from a cultural heritage preservation perspective.
How to protect sacred works? Artistic works that have been passed on from generation to generation are by definition not independently created and thus not original. Internationally, originality is the standard prerequisite of copyright eligibility. Since Bali was part of the Dutch East Indies, and the Dutch Authors Law of 1912 was applied by extension, the work had to reflect the author’s personal stamp or individuality (Van Dale v. Romme). One can argue that Spies’s and Limbak’s choreography of the Kecak dance could have been protected under copyright law to the extent that it differs from Sanghyang Dedari. However, they did not claim copyright. The applicable Dutch Authors Law 1912, which is still valid, protects the author’s right for seventy years after the death of the author. Spies, who was arrested and charged with sexual acts with a minor (Green), was released from prison in 1939 and soon after imprisoned for being German. Spies died in 1942 when the merchant ship SS Van Imhoff on which he was being deported was hit by a Japanese bomb. His co-choreographer died in 2003 at 106 (LA Times). Thus, theoretically, they could have protected the choreographic work under copyright law until 2073.
In 1971, Balinese scholars convened to prevent the unchecked exploitation of Balinese culture and established a classification system for Balinese dances, dividing them into three categories: tari wali (sacred dances), tari bebali (ceremonial or ritual dances), and tari balibalihan (secular dances) (Stepputat). Tari wali cannot be performed outside of their ritual context (Stepputat).
Even though the Sanghyang Dedari and Kecak dances are ontologically different, they are both regarded as customs, rituals, traditional knowledge and arts, and fall under Indonesia’s Law No. 5 of 2017 on Cultural Advancement.
The utilitarian objective of copyright law in the United States is to provide a temporary monopoly as an incentive to authors to create more expressive works (U.S. Constitution). In other words, the objective of copyright law is to create a giant warehouse of works, as Professor Litman called it. After the copyright period expires, the work ascends to the public domain. Communities that have created sacred works that are crucial for the survival of their collective identity want to shield people outside their community from experiencing the work. Therefore, copyright protection, which ultimately aims to add each work to the public domain, is a bad fit for the protection of sacred works. At first sight, trade secrets seem a better match. However, the two prerequisites of trade secrets, to maintain secrecy and commercial value due to secrecy, are also problematic. It is difficult for communities to keep these works secret in the exercise of their traditions and rituals, and the works have a spiritual value that cannot be monetarily expressed.
In addition to the utilitarian justification of copyright law, there are Locke’s labour theory, and Gordon’s application of Locke’s labour theory, as well as Hegel’s personality theory, and Radin’s application of Hegel’s personality theory. Under these doctrines, the link between the author and the work is emphasized. Because of the intergenerational character of Traditional Cultural Expressions (TCEs), this link is often strongly diluted. However, in the best case scenario, each generation builds upon the work, updates it to the contemporary context, and ensures its relevance and vitality. Since copyright is individualistic, and the concept of joint authors is only reluctantly accepted by the courts, TCEs are the better option. This process started in 1967 with the addition of Article 15.4 to the 1967 amendment to the Berne Convention for the Protection of Literary and Artistic Works, which provides a mechanism for the international protection of unpublished and anonymous works. According to the Guide to the Berne Convention of the Paris Act 1971, the aim of this addition at the Stockholm Conference of 1967 was providing international protection of folklore. The term “folklore” was not literally used in the Berne Convention in 1967. The provision was confirmed in the Paris Revision of 1971.
TCEs encompass tangible and intangible cultural heritage, including music, dance, art, designs, names, signs, symbols, performances, ceremonies, architectural forms, handicrafts, and narratives passed from generation to generation.
For TCEs, a certain degree of evolution is possible through cultural practices that reflect contemporary reality depending on how the TCE policy is implemented. With collective stewardship, the community of a sacred work needs to balance authenticity and innovation. However, for most sacred works, stability seems to be more important, and the community of a sacred work might want to keep a certain manifestation of the work secret. Control over their TCEs is of cardinal importance to traditional communities and indigenous peoples. Of course, deciding if someone is part of such a community can be difficult indeed. But these problems of delineation one can find in many fields of law, including geographical indications.
In the United States, moral rights are being protected via the Visual Artists Rights Act of 1990, which is only relevant for a small category of subject matter, and a patchwork of laws that focus directly or incidentally on moral rights for the other subject matter (U.S. Copyright Office). In contrast, Indonesia’s Copyright Law recognizes moral rights under Law No. 28 of 2014 on Copyright. These rights are distinct from economic rights and are granted to creators to protect the personal and reputational connection they have with their works.
Certain copyright frameworks such as communal copyrights (Gebru) and moral rights, the right of integrity and the right of attribution, could be combined with cultural heritage policies to safeguard against exploitation without freezing TCEs in time.
Balinese can still perform the Sanghyang Dedari trance dance or partake in the ritual. The Kecak had partially its origin in this sacred dance, but it never replaced it. The tourists lured with the promise of an authentic Balinese cultural experience are brought under the spell of a relatively modern spectacle. This mirrors the Orientalist view of Balinese culture, which effectively distracts them from the true, spiritually pure trance dance: a decoy to shield the prize. However, without effective legal protection of the TCE, the threat is that the popular Kecak dance will eventually overshadow the Sanghyang Dedari.
*CHEN Jun is a researcher in the field of culture & tech, he is now a Doctoral candidate at Chinese University of Hong Kong,Faculty of Social Science, researching identity issues, especially via the lens of digital art.His interests on identity issues are strongly attributed to his teaching experience in inner city public schools in Los Angeles. CHEN was trained as a computer engineer at college, received his MA from CUHK in Intercultural Studies, and spent one research year at Universitat Autònoma de Barcelona.CHEN has worked in education, technology and art sectors around the globe, curated exhibitions in mainland China, Hong Kong and Singapore. He has published articles on various topics with journals including Artron, Asia Pacific Law Review, Imaginist, MIND, etc.
**Dr. Danny Friedmann is researcher and associate professor of intellectual property law at Peking University School of Transnational Law in Shenzhen. His monograph is titled “Trademarks and Social Media, Towards Algorithmic Justice” (Edward Elgar Publishing, September 2015). His student-reviewed articles are published with IDEA (and republication with Intellectual Property Law Review in 2024, which is an annual anthology of a selection of 19 articles out of all published U.S. articles), and CWIJ, and his article with NYU JIPEL is forthcoming. Peer-reviewed articles are published by Journal of World Intellectual Property (Taylor & Francis), Journal of Intellectual Property Law and Practice (Oxford University Press), GRUR Int., European Intellectual Property Review, Benelux Trade Marks and Design Rights (BMM) Bulletin, Asia Pacific Law Review, International Journal for the Semiotics of Law – Revue internationale de Sémiotique juridique and Jus Vini. His book chapter on Google and China was quoted by the Advocate General of the Court of Justice of the European Union in C-131/12 Google Spain in 2013.
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Feb 21, 2025 | HALO x ILJ Collaboration, Online Scholarship
Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.
Weitong Shan*
On 6 June 2024, the New York Supreme Court dismissed a restitution claim against the Solomon R. Guggenheim Foundation. The lawsuit, brought by the heirs of German Jewish collectors Karl and Rosi Adler in 2023, sought the restitution of Pablo Picasso’s painting La Repasseuse (1904) (“Painting”). The heirs claimed that Adler had been forced to sell the painting under duress in 1938 while fleeing Nazi persecution as part of a desperate fund-raising effort due to the Nazi’s confiscation of Adler’s assets. They alleged that Justin Thannhauser, who bought the Painting in 1938 from Mr. Adler, was aware of the Adlers’ plight and profited from their misfortune, and in the absence of the Nazi persecution, Mr. Adler would not have sold the Painting for $1,552 despite the value appraised at $14,000 in 1931. The plaintiffs demanded either its return or commensurate compensation of $100 million to $200 million.
The Painting was a bequeath of Thannhauser to the Guggenheim. In 1963, the New York Times ran a full-page article announcing that Thannhauser was to bequeath his collection, including the Painting, to the Guggenheim, and prominently featured a photograph of the Painting. In 1974, before receiving the Painting while Thannhauser was still alive, the Guggenheim contacted the Adlers as a part of the provenance studies. Eric Adler, the eldest son of Karl Adler, responded a few weeks later without indicating, explaining, or mentioning that the Painting had been sold under duress to Thannhauser, nor did he suggest anything remotely untoward about its disposition or otherwise make the demand for its return. The plaintiffs alleged that it was not until November 2013 that they first learned that they might have a possessory interest in the Painting.
The Court dismissed the claim on two grounds: the equitable doctrine of laches, and the failure of the plaintiffs to show economic or third-party duress. This decision raises complex legal questions surrounding the restitution of stolen art and historical injustices.
Legal Issues
The equitable doctrine of laches
On 16 December 2016, the Holocaust Expropriated Art Recovery Act (‘HEAR Act’) was signed into law to revive claims otherwise barred by the statute of limitations, enabling Holocaust victims and their heirs to pursue justice and reclaim property unlawfully and inhumanely taken from them. Sec. 5(a) of the HEAR Act establishes that, regardless of any Federal or State law or time-related legal defenses, a civil claim to recover artwork that was lost due to Nazi persecution may be filed within six years of the claimant or their agent discovering the identity and location of the artwork or property and the claimant’s possessory interest in it.
The Court did not address the issue of whether the plaintiffs’ claims were timely. Instead, it invoked the equitable doctrine of laches, as the HEAR Act explicitly precludes the application of “defense[s] at law relating to the passage of time” but does not interfere with the application of defenses at equity. It has been established that laches is appropriate where the delay results in deceased witnesses, faded memories, lost documents, hearsay testimony of questionable value, and the injustice of having to defend under these circumstances. The Court followed the decision in Zuckerman v Metro. Museum of Art, where the Second Circuit explicitly held that laches is an available defense to claims revived under the HEAR Act. In Zuckerman, similarly, the Leffmans sold their property to corporations without direct Nazi intervention in these sales. Neither the Leffmans nor their heirs made a demand for the artwork until 2010 despite their pursuit in other claims for their Nazi-era losses and their knowledge of the identity of the buyer. Consequently, the Second Circuit found the claim to be unduly delayed.
In contrast, the Court distinguished the present case from Reif v. Nagy, where the heirs were awarded ownership of property. Duress was found to taint the chain of title due to direct Nazi involvement in the transaction. The doctrine of laches did not bar recovery because the then-current owner acquired the artworks in 2013 at a substantial discount and specifically insured these artworks against the title claims in light of their blighted provenance. These specific facts indicated that the plaintiff suffered no change of position, loss of evidence, or other disadvantages resulting from the delay.
Economic or third-party duress
The Court ruled that a contract may be voided for economic duress if the complaining party was compelled to agree to its terms by a wrongful threat that deprived them of free will. However, general economic conditions, even the severe economic pressures felt during the undeniably horrific circumstances of the Nazi regime, are insufficient to establish duress if the counterparty had no role in creating those pressures. There is no indication in the Complaint that the Thannhausers were associated with the Nazi regime, collaborated with the Nazis, or were in any way linked to Nazi atrocities, and the plaintiffs conceded during oral arguments that they were not.
The claim of third-party duress also failed because the plaintiffs did not allege that Thannhauser was aware of or consented to any direct consequences tied to the failure to sell the Painting at the agreed but below-market-value price. In other words, there was no specific threat of harm contingent on Adler declining to sell the painting to Thannhauser
Analysis of the Case and Broader Implications
In terms of the laches defense, although a few courts, including the current one, have upheld its applicability, the growing number of cases concerning sales under Nazi persecution, rather than art directly confiscated by the Nazis, may provoke future disputes involving this defense. The reasonability of the laches defense remains contentious, as it arguably undermines the scope of the HEAR Act, which was intended to enhance protections for victims of Nazi persecution in line with the legally non-binding 1998 Washington Conference Principles and the 2009 Terezin Declaration. The Washington Conference Principles to achieve a “just and fair solution” for issues relating to Nazi-confiscated art. Notably, the Terezin Declaration expanded on the Washington Conference Principles by broadening the concept of “Nazi-confiscated art” to include “sales under duress”. However, the general stance of U.S. courts in interpreting the HEAR Act—where only defenses at law related to the passage of time are set aside, while equitable defenses remain unaffected—suggests that the courts have understood the HEAR Act in a restrictive manner. Furthermore, Congress’s decision to sunset the HEAR Act on January 1, 2027, around the time when most Holocaust survivors can reasonably be expected to have passed away, may also reflect concerns about the potential for heirs to bring claims indefinitely and the need to limit the scope of the HEAR Act.
Despite adhering to the general stance of previous courts on the laches defense, the Bennigson Court was slightly less reluctant to address the duress issue. It thoroughly considered the third-party duress claim as a matter of law, a factor that was absent in previous cases. This judgment thus offers guidance for future litigation involving Nazi-era takings and wartime transactions. That said, the decision also signals a bleak outlook for the applicability of third-party duress claims, as New York law sets a high threshold for proving a third party’s awareness of the duress.
The restrictive application of the HEAR Act and the reticence in domestic law on substantive issues regarding the implementation of international initiatives on Nazi-confiscated art stand in sharp contrast to Europe’s more pro-victim stance. In Europe, State practices in the context of sales due to persecution are significantly influenced by international soft-law instruments.
For instance, the heirs of Curt Glaser, a Jewish art historian who sold his collection before fleeing Germany in 1933, brought claims against both European and American institutions. Glaser sold most of his art in two auctions when he was forced out of his home after being removed from his job at the Berlin State Library. In Switzerland, the heirs of Glaser requested the Kunstmuseum Basel to restitute two lithographs by Edvard Munch. Initially, in 2008, the government of the Canton of Basel City and the Kunstmuseum Basel rejected the claim. However, in 2017, the heirs petitioned the Canton of Basel City to re-examine the case. Following this review, the Kunstmuseum Basel announced in 2020 that the parties had reached an agreement: It was acknowledged that the involuntariness of the ownership transfer and the extent of the duress remained unclear, and the Kunstmuseum Basel was found to have acted lawfully in acquiring Glaser’s works. Nevertheless, in the spirit of the Washington Conference Principles, the museum and the heirs agreed on a “just and fair solution” that the Kunstmuseum Basel held an exhibition honoring Glaser and provided financial compensation to his heirs. In the proceedings brought by the heirs of Glaser before the Dutch Restitutions Committee, the Committee advised in 2010 that the State Secretary for Education, Culture, and Science grant the restitution of the painting in question to Glaser’s heirs. This decision was guided by the third recommendation of the Ekkart Committee, which presumes that sales by Jewish private owners in Germany from 1933 onwards are involuntary unless expressly proven otherwise. The Committee concluded that the sale should be considered involuntary, as it is likely that Glaser was unable to freely dispose of the proceeds from the auctions. Due to the circumstances of the time, he probably had to use the funds to finance his escape to the United States and to pay the exit taxes imposed by the Nazis.
By contrast, in the United States, both the Metropolitan Museum of Art and the Museum of Fine Arts, Boston, rejected the claims of Glaser’s heirs despite the fact that the artworks were sold in the same auctions. The museums argued that there was insufficient evidence to prove that Glaser sold his artworks under duress, suggesting that his decision to sell could have been influenced by other personal factors unrelated to duress, especially considering the transaction price was considered fair according to their research. However, even when the price was apparently unfair, as is the circumstance in the Bennigson case, it is concluded that third-party duress cannot be established. Due to the lack of alternative dispute resolution mechanisms for Nazi-looted art, such as the restitution panels used in Europe that offer more flexible solutions, claimants in the U.S. are left to seek restitution through the courts. However, the legally non-binding international instruments have a very limited impact on the decision of the U.S. courts, which is often attributed to the private status of the current possessors of these artworks in the U.S. in contrast to the public nature of State-owned museums in Europe. As the Second Circuit stated in Zuckerman, a “just and fair solution” includes considering justice for the defendant as well.
Nevertheless, the dismissal of the Bennigson case does not signal the end of litigation regarding sales of property due to Nazi persecution. In the Bennigson case, the plaintiffs did not provide evidence and conceded on whether the purchaser was aware of or consented to the consequence of failing to sell the artwork, leaving it uncertain whether the outcome might differ if more substantive arguments were presented. Each case involving Nazi-looted art presents its own unique set of circumstances, and it remains to be seen how courts will ultimately define the parameters of duress claims in such cases when more facts come to light.
- Washington Conference Principles on Nazi-Confiscated Art, released in connection with the Washington Conference on Holocaust Era Assets, Washington, DC, December 3, 1998, https://www.state.gov/washington-conference-principles-on-nazi-confiscated-art/ (last accessed 9 Feb 2025), paras. 8-9.
- Terezin Declaration of 30 June 2009, released in connection with the Washington Conference on Holocaust Era Assets, Prague and Terezin, June 26-30, 2009, https://www.state.gov/prague-holocaust-era-assets-conference-terezin-declaration/ (last accessed 9 Feb 2025), “Terezin Declaration on Holocaust Era Assets and Related Issues,” para. 2; “Nazi-Confiscated and Looted Art,” Preamble.
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Feb 21, 2025 | HALO x ILJ Collaboration, Online Scholarship
Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.
Laura Villarraga Albino*
The Artist’s Resale Right (ARR), also known as droit de suite, is an intellectual property right recognized for authors of visual artworks or, after their death, the persons or institutions authorized by national legislation to obtain a monetary interest in any sale of their work in the secondary market. The right, enshrined in Article 14ter of the Berne Convention, mandates specific national legislation to regulate the amount and procedures for collection and is subject to the principle of reciprocity.
Despite volatile art market conditions, a recent report by the International Confederation of Societies of Authors and Composers (CISAC) indicates that worldwide ARR income grew by 4.9% in 2023, representing nearly one-quarter of visual arts collections. In Europe, France, Italy, and Germany saw increases in ARR income of 4.2%, 8.5%, and 25.9%, respectively, while the UK remained the largest collector, amassing EUR 16 million in 2023. Additionally, in the Asia-Pacific region, New Zealand, Australia, and South Korea have expanded their legislation, emphasizing the importance of ARR for the livelihoods and legacies of visual artists.
However, in Latin America, the adoption and enforcement of ARR remain inconsistent. Despite the art market’s substantial growth, reaching a historic high of USD 4.2 billion in 2022—a significant 30% increase from 2021—ARR implementation in the region lags behind its global counterparts.
By considering the growth and visibility of the region’s art market, this article provides a comprehensive overview of ARR in Latin America, discusses two main challenges in its regulation, and outlines some recommendations for its implementation. It is likely that Latin American countries will initiate discussions to align national legislation with international standards for visual artists, ensuring that artists are fairly compensated in the secondary market.
I. The Latin American Art Market
The art market in Latin America has demonstrated significant visibility and growth. Between 2020 and 2023, sales of works by Latin American artists increased by more than 50% compared to pre-pandemic years, exceeding USD 250 million. Specifically, in 2024, sales achieved remarkable milestones, totaling over USD 112 million. In addition, auction data from Artnet, spanning 2013 to 2023, reveals that artists from the region amassed over USD 2.74 billion in total sales from more than 57,000 lots.
This trend includes record-breaking sales, such as Frida Kahlo’s portrait Diego y yo, which sold for USD 34.9 million at Sotheby’s New York in 2021. Additionally, international recognition has increased, with significant representation at major art fairs and exhibitions. For instance, at ARCO Madrid approximately 30% of the participating galleries were from the region, while at the 2024 Venice Biennale one-third of the artists were from Latin America. This reflects the growing presence of Latin American art on the global stage.
Despite this growth, the absence of effective ARR legislation leaves artists at a disadvantage compared to their peers in other regions, thereby eliminating potential benefits from secondary sales and limiting the expansion of their rights.
II. The Resale Right in Latin America
Although Latin American countries have ratified the Berne Convention, the actual implementation of ARR remains largely insufficient. Current legislation across the region shows that two jurisdictions—Argentina (Law 11,723 of 1933) and Cuba (Law 154 of 2022)—do not recognize the right at all. Furthermore, sixteen countries have adopted ARR but have not yet established a functional legal or administrative framework for its collection and enforcement. To date, only Uruguay (Law 9,739 of 1937) effectively collects and distributes ARR royalties.
That leaves 95% of countries with inadequate implementation of the right despite its adoption in national legislation in most cases. The outcome? Under the reciprocity principle, artists cannot benefit from either local or international sales, creating “growing inequalities and imbalances between different regions and income streams [.]”
Considering the World Intellectual Property Organization (WIPO) guidelines, at least two significant challenges arise in configuring the right in Latin America: the rate charged and the administration of ARR—two crucial aspects that the Berne Convention leaves to national regulation.
A. The Rate Charged: Fixed, Sliding, or with Minimums and Caps?
In establishing the rate structure, the region presents a diverse landscape of regulatory approaches. Some Latin American countries have established fixed rates from 2% to 10% of the resale price, with Guatemala at the higher end. Other countries stipulate ‘at least’ 2%, 3%, or 5% of the price, suggesting that negotiating a higher percentage is possible. This, in practice, creates uncertainty and administrative complexity and can even be used as an excuse for non-compliance. Only Mexico has introduced a sliding scale, from 1.5% to 4% depending on the resale price.
Yet more problematic is that some Latin American countries—, Chile, and Ecuador—tie royalties to the increase in the artwork’s value between the first and subsequent sales. This method, however, conflicts with the fundamental idea of ARR. Rather than recognizing resale royalties as other exclusive economic rights granted to authors, this approach awards payment only if the resale generates a profit, treating the artist as a partner in the buyer’s investment.Furthermore, this practice has hampered enforcement. Regional experiences indicate that this approach is not advisable, as it poses significant enforcement challenges stemming from the need for full disclosure of resale details to accurately determine actual profits. Additionally, it fails to account for factors such as currency fluctuations, inflation, and the inherent difficulty of verifying previous valuations.
As noted by Fabiana Nascimento, Director of Visual Arts at AUTVIS (Associação Brasileira dos Direitos de Autores Visuais), “[t]he Artist’s Resale Right in Brazil was recognized in 1981 […] [but] it has been very difficult to apply […], as it defines the charge through the difference in values (prices) between the sales of the work, which in a country that has had six currency changes in the last 50 years is practically impossible”. Similarly, the Chilean ARR legislation is currently being amended due to its practical inconveniences.Moreover, when determining the rate, it is also important to consider the establishment of caps or thresholds as a condition to recognize the right, as in the European Union. However, in Latin America, discussions about caps have been limited for two primary reasons. Firstly, many local art markets are still maturing and have yet to see the astronomical sales common in Europe or the United States. Indeed, while one of the most expensive sales in Latin America was Paisaje de calicanto azules (1932) by Olga de Amaral, which sold for USD 225,633.47 in 2021 at BogotaAuctions, Klimt’s Lady with a Fan (1917–18) fetched USD 108.4 million at Sotheby’s London in 2023.
Secondly, laws in Latin American countries, following a continental approach of droit d’auteur, tend to be strongly pro-artist, at least in principle. As a result, establishing a minimum economic threshold for recognizing this right may be perceived as unfair, as it could undermine the acknowledgment of an author’s rights regardless of the associated administrative costs for art market professionals (AMPs). Essentially, the right should be upheld for artists irrespective of the burden on these professionals, ensuring that even modest or minimal royalties are duly paid.
Although caps and thresholds might help protect the market, interviews with European CMOs indicate that the current rate structure, unchanged since 2001, requires revision. For instance, ADAGP (Société des Auteurs dans les Arts Graphiques et Plastiques) notes that the existing cap may not align with today’s record art prices, potentially limiting artists’ earnings from high-value sales. Likewise, DACS (Design and Artists Copyright Society) emphasizes that while the initial minimum threshold might have been justified when the regulation was introduced, administrative costs have since decreased, resulting in the exclusion of many artists and diminishing the overall impact of the right.
B. Administration of ARR: Individual, Collective, or Mandatory?
Similarly to the rate of ARR, Article 14ter provides no specific guidelines on the administration of the right, leaving national legislators a range of options. Thus, administration may be conducted by the author and/or a CMO on either a voluntary or mandatory basis.
Notably, collective management is often regarded as the more efficient mechanism for administering the right, and in countries that successfully implement ARR, CMOs play a pivotal role. However, in Latin America, only 35% of countries have established CMOs, leaving the remaining 65% to individual management—with all the associated difficulties this implies for artists in collecting the royalty.
In countries where CMOs exist, ARR collection can still be challenging due to unregulated rates and unclear collection and distribution processes. For instance, in Brazil (AUTVIS), Chile (CREAIMAGEN) and Argentina (SAVA—Sociedad de Artistas Visuales Argentinos), ARR collection remains largely underdeveloped despite many efforts by these organizations to regulate or amend existing ARR regulations. Regarding other CMOs, there is insufficient information about their functioning and awareness of ARR, such is the case of Ecuador (ARTEGESTIÓN) and Peru (APSAV—Asociación Peruana de Artistas Visuales).
In most cases, collective management is voluntary regardless of the establishment of CMOs, as is the case in Uruguay. In other countries, legislation states that collective management is not compulsory, allowing authors the autonomy to manage their rights directly or through CMOs. Such is the case of Colombia, where the Constitutional Court has expressly ruled out mandatory collective management. Despite this, CMOs remain the only mechanism to grant the collection of ARR in international sales due to sister societies.
Lastly, Venezuela is the sole country with legislation that mandates collective management, yet its CMO, AUTOARTE, has ceased operations. Thus, without an active CMO, such regulation loses any practical application in favor of the artists.
C. A Successful Case: Uruguay and Prospects for Mexico
There is, however, a beacon of hope. Uruguay stands out for its effective enforcement of ARR. Although the country first adopted the right in early 1937, the regulation was amended in 2003 to introduce a 3% fixed rate on resale prices—an approach that has since yielded meaningful results.
Today, Uruguayan artists may collect individually or through AGADU (Asociación General de Autores del Uruguay), which manages ARR on behalf of APEU (Asociación de Pintores y Escultores del Uruguay) members. In addition, AGADU’s efforts have resulted in robust enforcement and public awareness of the right. Furthermore, two court rulings have consistently reinforced the relevance of ARR by reaffirming the auctioneer’s obligation to pay the resale royalties.
To ensure compliance, Uruguayan legislation established a duty for AMPs to notify resales. While AGADU actively requests resale information and even attends auctions to verify sales, compliance among dealers and galleries still largely depends on truthful declarations, making enforcement more challenging compared to auctioneers. Despite these practical challenges, effective regulation is in place, and last year, over EUR 50,000 were collected in ARR royalties, becoming a significant source of income for artists.
Meanwhile, in January 2023, Mexico formally set the tariffs for ARR collection without objections after a public consultation. While it is still too early to assess its impact, Mexico, as one of the major art markets in Latin America, could potentially initiate discussions about balancing administrative costs for AMPs.
III. Looking Ahead
The growth of Latin America’s art market presents a unique opportunity to discuss the implementation—and perhaps even the harmonization—of the resale right. While most countries in the region have adopted the right, effective implementation remains rare. Countries exploring its regulation, however, can learn from Uruguay’s model. A straightforward regulatory framework with a fixed rate, robust collective management, and institutional support can help provide adequate protection for visual artists. By creating effective mechanisms to collect royalties and report resale information, it is possible to enhance the capacity to monitor transactions and enforce compliance in a market often characterized by informality and secrecy.
In the meantime, supporting the establishment of CMOs in the region, although not mandatory, will be crucial to facilitate the collection in international sales. Additionally, further research into local art markets could provide valuable data for legislators, CMOs, and other stakeholders to refine regulatory measures. Lastly, raising awareness among AMPs about the importance of the resale right for artists will be crucial for fostering compliance and strengthening transparency within the art ecosystem.It is time for Latin America to address the effective regulation of ARR. By closing these gaps, Latin American countries can ensure visual artists benefit from the enduring success of their works in the international market, promote transparency in art-market practices, and align regional intellectual property rights with global standards.
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Feb 21, 2025 | HALO x ILJ Collaboration, Online Scholarship
Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.
*Anna Pedrajas
As UN Secretary-General António Guterres addressed the UN General Assembly in September 2021: “We are on the edge of an abyss.” This powerful metaphor expresses the entire depth of the climate crisis: It is now undeniable that the society we have always known will change completely because of climate change. Amid the numerous consequences stands out the certain loss of cultural heritage. Unfortunately, as climate change intensifies, the international community’s capacity to safeguard its cultural assets appears negligible.
There is no doubt that protecting heritage is a daunting task, as the notion covers a large array of elements. An independent expert in the field of cultural rights, Farida Shaheed defined cultural heritage as “the resources enabling the cultural identification and development processes of individuals and groups, which they, implicitly or explicitly, wish to transmit to future generations.” Moreover, it is intricately linked to its environment and, therefore, indirectly threatened by the dangers looming over it. Climate change is thus dangerously testing its ability to withstand the passage of time.
Protecting cultural heritage in this context may sound like a lost cause. Everyone is a contributor to the phenomenon, and no place in the world will be spared. In that sense, it is an absolute planetary issue and has been defined as a “wicked problem,” and we are now fully conscious of its consequences for cultural heritage. From Venice to the artistic living practices of Pacific islanders, the examples are countless. Its survival thus directly depends on global action.
The current situation is far from encouraging, revealing both an ambition and an implementation gap. This calls for an analysis of international law’s capacity to grasp this issue.
The Inadequacy of Cultural Heritage and Environmental Law in the Climate Crisis
The study of international norms applicable to tackling the issue, such as international environmental law agreements, treaties on cultural heritage protection, or customary rules on prevention of environmental harm, leaves us with a nuanced picture.
First, international cultural heritage law is an incomplete framework. To this day, there is no overarching obligation upholding a general duty to protect all cultural assets without distinction and at all times; the approach could rather be defined as a piecemeal one, with several instruments tackling specific aspects of heritage. Not only do they rely on a selective listing approach, but also their processes are dominated by states parties and do not offer specific, binding obligations regarding climate change.
Since human cultural heritage is embedded in its natural environment, it benefits from its legal protection in international environmental law. Not only are states bound by a customary duty not to cause transboundary harm, but sectoral environmental agreements – such as the Paris Agreement, the UNCLOS, the UNCCD, and the Ramsar Convention on Wetlands also imply obligations. However, international environmental law also has its share of shortcomings: It leaves discretion to states, is not complemented by strong enforcement mechanisms, and has no overarching instrument upholding a general duty of protection. It is criticized for its poor record in effectively safeguarding the environment.
International Human Rights Law’s Contribution to the Safeguarding of Cultural Heritage amid Global Change
Thankfully, international law also presents frameworks that could be more successful in addressing cultural heritage issues in the face of climate change. Such is the potential contribution of human rights law. Indeed, it offers a wide range of tools and mechanisms that lay a strong base of duties for states and can be used directly by individuals to denounce abuses and claim reparations. The essence of international human rights law lies in an obligation for states to protect human rights, notably cultural ones, on their national territory. Thus, it establishes itself as a much-needed complement to agreements limiting themselves to horizontal obligations between states and could reinforce cultural heritage protection in the face of climate change.
Even if there is not, to this day, a clear standalone right to cultural heritage in international law, several others can tackle cultural assets and safeguard cultural diversity. These conventions require states to adopt measures to ensure respect, protection, and realization of human rights in their domestic order, lay clear duties, and offer mechanisms to seek redress in case of violation.
The most fundamental provision for our study would be Article 15 of the International Covenant on Economic, Social and Cultural Rights, which affirms the universal right to take part in cultural life. Since it does not differentiate between cultural assets and calls for global protection, it is a crucial legal tool to effectively advance the safeguarding of culture in the face of climate change. It is reinforced by regional instruments that also lay obligations in the matter and establish strong enforcement mechanisms, such as the Inter-American and African human rights systems.
Besides, some cultural assets benefit from specific, additional protections. For instance, Article 27 of the International Covenant on Civil and Political Rights focuses on the culture of minorities, while Article 31 of the UN Declaration on the Rights of Indigenous Peoples affirms the protection of their cultural heritage and expressions.
Other human rights can contribute to the safeguarding of culture. We can consider, for instance, religious rights, the right to self-determination, or the right to a healthy environment. Even if it is only binding at the regional level to this day, the latter gives a basis for global protection of the environment, its components, and, therefore, the human society that depends on them.
Thus, thanks to systemic integration, which has led to the climatization of human rights law, victims of climate change can defend their interests and demand more ambitious climate action. This strategic use of human rights provisions on culture to advance climate action and obtain climate justice for cultural assets keeps proving itself to be a promising legal avenue. Recent developments, such as two distinct decisions from the Committee on Economic, Social and Cultural Rights and the Committee on the Rights of the Child, in the same context of harmful mining activities denounced by Sami populations in Finland, corroborate that judicial and quasi-judicial powers may help serve the protection of cultural rights. This argument has been accepted in the context of climate change, as the Torres Islands petition in front of the Human Rights Committee confirmed. As it has been suggested, cultural rights might be a more adequate tool than other international norms and other human rights to advance climate action and could be used to carry out strategic litigation. Other cases could draw inspiration from these precedents and arise in the future. Recent developments at the domestic level, such as the Bonaire case in Dutch courts, confirm this potential. But additional elements indicate that culture will not be safeguarded through the courts alone.
Human Rights Litigation’s Unfortunate Shortcomings in Protecting Cultural Heritage
Even if it has the potential to realize climate justice, human rights litigation is not immune to hurdles and will not be a panacea.
First, there are shortcomings directly imputable to the international legal order. Whereas human rights litigation depends on the ratification of instruments and the acceptance of human rights bodies’ jurisdiction, decades of practice reveal that its contribution should be relativized due to reluctance to implement judicial decisions.
Domestic litigation also faces its hurdles. Seeking climate obligations and reparations requires grasping complex questions of causation that courts will not be the most legitimate authorities to solve, and adequately repairing this noneconomic damage will be a thorny issue. Judges have also been cautious not to overstep their functions and instead leave freedom for states to implement decisions and remedy harm. The recent European Court of Human Rights’s decision, KlimaSeniorinnen v. Switzerland, is a powerful example of such restraint.
More generally, human rights law presents its share of conceptual difficulties. There exists a divergence of views between human rights bodies on the idea of extraterritorial application of conventions. Even if the Inter-American Court, in its 2017 advisory opinion, affirmed a duty to prevent environmental harm to avoid causing human rights harms to populations abroad, and found support in the Committee on the Rights of the Child, this revolutionary position in favor of a broader conception of transboundary dynamics was not shared by the European Court in its recent decision. Thus, due to these nuanced positions on “diagonal” complaints directed toward a state by foreign individuals, the possibility of getting redress for harm might appear uneven.
Finally, there are practical issues as well, such as the costs of human rights litigation and the magnitude of the compensation that is owed.
It appears that litigation will not suffice to protect cultural assets in the face of climate change, and that actions are needed beyond the courtroom. For these reasons, it is essential to view litigation as a tool to bolster climate negotiations.
Completing Climate Justice: Potential Legal Developments in Favor of Cultural Rights
Since everything is interconnected, the most specific action can contribute to a bigger purpose. Through a trickle-down effect, we can guarantee the conservation of culture by spurring environmental and climate action more generally, or by integrating it into other regimes.
Invoking human rights obligations linked to culture would be an effective way to advocate for normative improvements. Relying on human rights obligations, such as the obligation to cooperate, could be an impetus for states to negotiate new instruments in order to advance the protection of cultural assets. For instance, one could consider acknowledging that human expressions are inextricable from their environment, possibly through reference to biocultural rights.
Besides, it is essential to take the “humanization” of climate change law one step further, and require states to integrate human rights into their nationally determined contributions and report on the subject.
Developments may also be called for to overcome the verticality paradigm in the field of human rights law. Some have called, for instance, for a responsibility of repairing harm caused to foreign populations. Such a progressive interpretation of human rights instruments could turn out to be an essential aspect of addressing climate change harm, especially with regard to cultural losses.
Finally, the protection of culture will depend on the international community’s ability to rethink its governance of global issues. Proclaiming a general environmental duty through a universal human right to a healthy environment would ensure holistic protection, and answering the call for solidarity in international law by spurring cosmopolitan and intergenerational justice would contribute to safeguarding not only cultural heritage, but the climate as well.
Conclusion
Cultural heritage protection might sound like a drop in the ocean of climate justice, but it may actually go a long way in protecting the climate. Normative development in favor of cultural assets would contribute to global environmental protection. Thus, the quest for cultural rights justice can be a powerful tool to tackle climate change and strengthen global governance.
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Feb 21, 2025 | HALO x ILJ Collaboration, Online Scholarship
Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.
Gunna Freivalde*
I. Introduction
The legal struggle regarding Camille Pissarro’s Rue Saint-Honoré apres-midi, effet de pluie (1897) illustrates the striking relationship between legal structures and moral obligations in art restitution. Originally owned by Lilly Cassirer Neubauer, a Jewish collector, who sold the painting under duress to evade Nazi persecution in 1939, this artwork has become a central topic for debates concerning ownership, justice, and, moreover, ethical implications of owning art with such a troubled history. These implications extend to the responsibilities of current possessors, who must not only acknowledge the artwork’s past but also maintain a moral duty to respect the full picture of its provenance, particularly when that provenance involves historical injustices.
The painting ultimately found its current home in Spain’s Thyssen-Bornemisza Collection in Madrid. The Cassirer family had sought its return through California courts under the U.S. Foreign Sovereign Immunities Act (FSIA), claiming that their ancestor’s sale was coerced and, therefore, invalid under international law. However, lower courts applied Spanish law, which emphasizes long-term possession over claims of stolen property. This legal dichotomy has not only raised fundamental questions about the sufficiency of existing restitution laws globally but also whether they effectively address historical wrongs. As nations grapple with their colonial pasts and wartime looting, this case highlights the question of how effectively legal systems can reconcile the moral obligation to restore rightful ownership to the owners or their descendants. Ultimately, the resolution of this dispute not only affected the fate of a single masterpiece but also set precedents that will potentially influence future cases involving looted art worldwide.
Pissarro’s Rue Saint-Honoré is not merely a work of art; it embodies a complex historical narrative that reflects the broader socio-political upheaval of its time. Painted in 1897, this piece captures the essence of Parisian life during a period marked by rapid urbanization and cultural transformation. However, its significance extends far beyond its aesthetic qualities. The painting became emblematic of the tragic consequences faced by Jewish collectors during World War II when many artworks were forcibly sold or stolen under duress from their rightful owners. Neubauer’s forced sale of the painting in 1939 reflects the systemic targeting of Jewish collectors during the Nazi era when widespread looting deprived countless individuals of their cultural heritage. The coerced nature of these transactions often left victims and their descendants without legal recourse, a legacy that persists in restitution claims today. As such, this particular artwork serves as a poignant reminder of these injustices and raises critical questions about ownership rights in cases where artworks were acquired through coercion or theft. The subsequent journey of this painting—from Cassirer’s possession to its current home in Spain’s Thyssen-Bornemisza Collection—underscores how legal frameworks often struggle to address moral imperatives associated with historical wrongs and how artworks looted or sold under duress frequently end up in private or institutional collections, often without rigorous provenance checks. These provenance checks are essentially the history of ownership and transfer of an artwork. They are intended to trace an artwork’s story back through time, verifying its rightful ownership at each stage; however, many artworks looted or sold under coercive circumstances have slipped into private or institutional collections without any scrutiny applied before their purchase. This situation is further complicated by the fact that the laws that govern such matters do not always align with ethical considerations. Although many advocate for restitution, the path forward remains fraught with challenges.
As descendants, such as those from the Cassirer family, pursue justice through contemporary legal channels, they confront not only national laws but also international norms concerning property rights and restitution. This case, in particular, exemplifies how historical context shapes contemporary discussions on art ownership; it shows ongoing tensions between legal entitlements based on possession versus ethical considerations rooted in justice for victims of past atrocities. Although understanding this historical backdrop is crucial for evaluating the legitimacy of claims made regarding Pissarro’s masterpiece today, some may overlook its significance because of present-day complexities.
II. Legal Frameworks in Art Restitution
The legal frameworks that govern art restitution are often multifaceted and conflict with moral imperatives surrounding the return of looted artworks.
Historical cases like Gustav Klimt’s Portrait of Adele Bloch-Bauer I (1907), resolved by Austria returning the painting to Maria Altmann following a U.S. Supreme Court ruling (Republic of Austria v. Altmann, 541 U.S. 677, 2004), illustrate how international claims can prevail when moral imperatives align with legal frameworks. Similarly, the Gurlitt Trove revealed systemic gaps in provenance checks, prompting Germany to establish the Advisory Commission for Nazi-looted art. These cases highlight that restitution efforts often rely on the willingness of courts and nations to confront historical injustices. However, this confrontation can be deeply uncomfortable, requiring a country to acknowledge past wrongs and possibly destabilize already established stories. It may explain the lack of responses in similar cases, as the political and social costs of acknowledging and rectifying past injustices are considered too high.
In the case of Pissarro’s Rue Saint-Honoré, this tension is exemplified because the Cassirer family was seeking to reclaim a painting sold under duress during Nazi persecution. The central legal question in this case revolved around which jurisdiction’s laws should apply: California law, which would favor claims of stolen property, or Spanish law, which would emphasize long-term possession.
Under Spanish law, Article 1955 of the Civil Code grants ownership through uninterrupted possession in good faith for over six years. The Thyssen-Bornemisza Collection relied on this principle, asserting that the foundation had acquired the painting without any knowledge of its tainted provenance. Spanish courts have historically favored stability in property rights, prioritizing long-term possession over historical claims.
In contrast, U.S. law, as applied under the FSIA, follows a discovery-based statute of limitations. This approach allows claimants to pursue stolen property within six years of discovery and assert rightful ownership. The Cassirer family’s argument rested on the notion that the 1939 sale was a coerced transaction, invalid under international norms recognizing the duress imposed during the Nazi era.
Ultimately, U.S. courts ruled in favor of Spanish laws, citing the primacy of Spanish law over the restitution principles underlying the Cassirer family’s claim. The decision reflects a broader issue within the realm of conflicting national laws and inadequacies of existing legal frameworks in addressing cases that are morally compelling yet legally complex. By applying the lex situs principle, U.S. courts effectively sidelined ethical considerations related to Nazi-looted art. Although some may see the ruling as justified, it invites a deeper analysis of the intersection between morality and legality, challenging established norms in the process.
The application of Spanish law’s “good faith acquisition” principle seemingly legitimizes transactions conducted under dubious circumstances during a period marked by widespread looting. Although there exists a moral imperative to restore stolen artworks to their rightful owners or heirs, such principles often clash with established legal doctrines that prioritize local laws over historical injustices. The Pissarro case exemplifies this tension—while there is a clear moral argument for restitution based on the painting’s Nazi provenance, legal frameworks fail to provide adequate mechanisms for redress when confronted with competing national interests. This ruling shows not only a failure of individual claims but also highlights systemic deficiencies within international art restitution practices.
Furthermore, international treaties and agreements related to cultural heritage and restitution have been established; however, they often lack enforceability or widespread adherence.
Adopted in 1998, the Washington Principles on Nazi-Confiscated Art emphasizes the need for “just and fair solutions” in restitution claims. However, these principles lack binding legal force, leaving their implementation to the discretion of individual states. The Pissarro case highlights the inadequacy of voluntary guidelines in resolving complex disputes. The 1970 UNESCO Convention aims to combat illicit trafficking in cultural property but does not specifically address instances such as this case, where ownership was transferred under coercive circumstances. This means that existing legal frameworks frequently fall short of offering just resolutions for victims or their descendants because this issue remains complex and multifaceted.
The disparity between national laws and international norms creates significant barriers for claimants seeking justice, particularly in instances involving cultural heritage and restitution. This inconsistency manifests in conflicting legal frameworks that govern ownership and repatriation of artworks, and the Pissarro case exemplifies this dilemma, wherein differing national laws obstruct equitable resolution. Such inconsistencies not only complicate the adjudication process but also undermine the ethical imperatives that drive claims for stolen or looted art. A unified approach—potentially through binding international arbitration mechanisms—could provide a more effective means of addressing disputes like the Pissarro case. Binding arbitration can offer a neutral forum where diverse parties can present claims within an internationally recognized legal context.
III. Moral Implications of Art Ownership
The moral implications of art ownership, particularly in cases involving looted or coerced sales, challenge our understanding of property rights and ethical responsibilities. In the case of Pissarro’s Rue Saint-Honoré, the painting’s journey from Neubauer to its current location in Madrid in the Thyssen-Bornemisza Collection raises profound questions about the legitimacy of ownership acquired under duress. Museums bear a moral obligation to conduct thorough provenance research, particularly for artworks that may be linked to looting or coercion. The Thyssen-Bornemisza Collection’s retention of the artwork in question has drawn criticism, highlighting the ethical challenges faced by institutions that prioritize possession over restitution.
The ethical precedent set by Austria’s restitution of Klimt’s Portrait of Adele Bloch-Bauer I demonstrates how returning looted art not only rectifies historical wrongs but also restores trust in cultural institutions. Similarly, the Gurlitt Trove underscored the importance of transparency and provenance research in fostering public accountability.
Art is not merely a commodity—it embodies cultural heritage and personal history. When artworks are acquired through coercion or theft, as was the case for many Jewish collectors during World War II, ownership becomes ethically contentious. The Cassirer family’s pursuit reflects broader societal values advocating for restitution, aligning with the Washington Principles’ emphasis on “just and fair solutions.” Their claim rests on the assertion that the sale was not a legitimate transaction but rather an act forced upon Neubauer by an oppressive regime—an argument that challenges conventional notions of property rights. The argument not only calls into question the legitimacy of transactions conducted under oppressive conditions—acknowledging that some property rights may be invalidated because their origins are rooted in duress—but also compels a reassessment of the understanding of justice and equity within legal frameworks. Furthermore, this dispute underscores broader societal values regarding justice and accountability as there is a growing recognition that returning looted art is not merely a matter of legal compliance but also one of rectifying historical wrongs. The debate surrounding Rue Saint-Honoré shows how unresolved issues from the past continue to influence contemporary discussions on ownership and restitution.
Once again, we can ask ourselves: should possession alone determine rightful ownership? Many argue that artworks obtained through coercive means should be returned to their original owners or their descendants as a matter of moral duty—an essential step toward acknowledging past atrocities. This perspective aligns with international norms advocating for justice over mere legality; however, it often clashes with national laws, such as the Spanish laws prioritizing long-term possession. Ultimately, resolving disputes like the one over Pissarro’s painting requires not only navigating complex legal landscapes but also engaging deeply with ethical considerations rooted in historical injustices.
IV. International Disparities in Restitution Laws
Disparate national laws complicate restitution efforts. The Gurlitt Trove and Altmann’s legal battle illustrates just how proactive measures, such as provenance research and transparent judicial processes, can bridge gaps in restitution laws. These cases should serve as blueprints for addressing complex claims, such as the Cassirer dispute.
In different European nations, laws regarding art restitution frequently prioritize the rights of current possessors over those asserting historical injustices. In this case, Spain’s legal framework permits the retention of artworks acquired through prolonged possession, even when such acquisitions occurred under morally questionable circumstances. This contrasts sharply with some jurisdictions that have enacted specific legislation aimed at facilitating the return of looted art to its rightful owners or their descendants. Such disparities create an uneven playing field.
Furthermore, international treaties addressing cultural heritage often lack enforceability or fail to adequately cover cases similar to that of Pissarro’s painting. Consequently, in such cases, the claimants encounter significant obstacles when they pursue justice across borders. This, in turn, underscores the need for a more unified international approach to address historical wrongs effectively, even if it requires a commitment from nations worldwide to prioritize ethical considerations alongside legal entitlements in matters pertaining to looted art.
The case regarding Pissarro’s Rue Saint-Honoré showcases the profound tensions that exist between legal frameworks and moral imperatives in art restitution. The painting’s journey from its original owner to its current place underscores a broader dialogue about ownership rights rooted in coercion versus those grounded in prolonged possession. This dispute reveals significant disparities in international restitution laws and highlights how different jurisdictions prioritize stability over rectifying past wrongs. Although the legal path appears convoluted, this pursuit remains essential because it challenges the status quo.
The moral implications of such ownership claims extend beyond individual artworks; they challenge societies to reckon with their histories and acknowledge the consequences of past wrongdoings, and this case serves as a crucial reminder that legal entitlements cannot exist in a vacuum devoid of ethical considerations. As nations navigate these complex landscapes, it becomes increasingly clear that a unified approach is necessary—one that prioritizes justice and accountability alongside adherence to statutory frameworks. Ultimately, this case is setting important precedents for future disputes involving the restitution of art worldwide. Achieving a balance between legal norms and moral obligations is essential for fostering an environment where such matters can be addressed meaningfully; however, paving the way for restorative justice within the realm of cultural heritage remains a challenging endeavor because it requires navigating deeply entrenched interests.
V. Conclusion
The implications of this case extend beyond mere legal technicalities—they engage with broader societal values regarding justice and accountability in light of historical wrongdoings. In this particular case, the act of restitution transcends mere financial compensation or the transfer of the artwork—it embodies an acknowledgment of loss suffered during one of history’s darkest times. Although many may agree on the necessity of restitution, the complexities involved cannot be overlooked and require careful consideration and understanding. Camille Pissarro’s Rue Saint-Honoré serves not only as an invaluable artistic treasure but also as a symbol of contemporary struggles over justice within art restitution discourse.
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