Fair and just solutions? Alternatives to litigation in Nazi looted art disputes: status quo and new developments, 27 November 2012
‘If the pre-War owners of art that is found to have been confiscated by the Nazis and not subsequently restituted, or their heirs, can be identified, steps should be taken expeditiously to achieve a just and fair solution, recognizing this may vary according to the facts and circumstances surrounding a specific case’.
Washington Conference Principles On Nazi-Confiscated Art, 3 December 1998, no. VIII
Today, fourteen years after the signing of the Washington Principles, the debate about Nazi-looted art is still topical. The call for just and fair solutions and alternative dispute resolution in ownership disputes has led a number of countries to set up advisory committees or panels. For the first time, on the occasion of the tenth anniversary of the Dutch Restitutions Committee, five European advisory committees will meet in the Peace Palace in The Hague.
The Restitutions Committee is taking this opportunity to organise a one-day symposium to evaluate the status quo of dispute resolution in Nazi-looted art cases in and beyond the countries that have installed advisory committees. Leading experts from different countries will participate in an interdisciplinary discussion to explore the question of how to reconcile the different interests of former and present owners. Attention will be focused on disputes involving one or more private parties, i.e. a natural person or a private-law entity, as opposed to problems relating to intergovernmental disputes.
A Word on the Programme
Everyone attending the symposium Fair and just solutions? undoubtedly shares the conviction that claims for the restitution of Nazi-looted art should be taken seriously. However, this has not always been generally accepted. It became common ground after the methods and scale of the looting by the Nazi regime became widely known, and after it was realised that thousands of those works of art were still held in national collections of ‘heirless’ art – often without the justification of a proper search for the original dispossessed owners in the post-war era. Publications by historians and others played a key role in this process. The adoption of the Washington Principles in 1998 codified the principle that claims on Nazi-looted art should be taken seriously.
Steps by National Governments
In the years that followed, a number of national governments took rigorous steps to investigate their collections of ‘heirless’ art, and adopted measures making it easier for dispossessed owners to come forward with claims to works of art in state collections. Standards for these claims often set aside the normal limitation periods. Today, the governments who created these mechanisms might claim that their responsibilities regarding supposedly heirless art collections have been met, in as far these measures offer claimants realistic possibilities for a ‘fair and just’ procedure and solution. It should perhaps be added that this specific responsibility for ‘heirless’ art collections was also based on a less than perfect post-war restitution effort.
The measures taken by national governments notwithstanding, it is impossible to maintain in 2012 that Nazi-looted art claims are no longer an issue. It is clear that questions as to the legal status of works of art with a Nazi history remain unsolved outside the realm of (heirless) art collections in the custody of national governments. Emotional public debates and long-fought cases testify to this. Disputes of this type come within the scope of the normal national laws. It might be argued that the outcome of these disputes should be determined by assessing the possessor’s legal title. In reality, however, a work of art may remain tainted in spite of a good legal title. This could make it impossible to sell it or allow it to go on loan in other countries. In other words, aside from the question of morality, there might be a practical need to find solutions based on norms other than strict legal ones. The extent to which the regular judiciary can still look at these claims is a matter of national jurisdiction. During the day we will hear different views on this point from different legal angles.
Returning to the Washington Principles, how could claims like these, not covered by specific national standards that can bring them within the scope of national panels, be resolved? What is the meaning of a ‘fair and just solution’ in these cases? The Washington Principles state that a fair and just solution may vary ‘according to the facts and circumstances surrounding a specific case’. This raises many questions, some of which we will address during the symposium.
1. What is fair and just?
Claims to state-owned property (e.g. the ‘heirless’ art collections) are generally assessed differently from claims to works of art in other collections. Can it be said, therefore, that a fair and just solution depends on the status of the present possessor, or on his or her good faith? Furthermore, the Washington Principles refer to ‘confiscated art’. Should this be taken as a restriction, meaning that not every loss is covered, but only those that can be regarded as a confiscation? And what is the role of independent and neutral investigation into the facts in this regard? Research might reveal that what appears at first sight to be a voluntary sale was actually a forced sale, and vice versa.
2. Time limitations and the relation to other spoliated art
What role should the issue of time play in the assessment of a fair and just solution? This question touches on philosophical aspects (restorative justice) as well as more pragmatic matters. Should a limitation period apply, as it does in other ownership claims and, if so, what might a valid criterion be?
3. Special status of Nazi-looted art
Another, rather basic, question is in what sense Nazi-looted art claims differ from other claims regarding spoliated art. If there is a fundamental difference, what is its essence? Or could the standard for Nazi-looted art claims be useful for other claims on spoliated art as well?
4. How to get there?
The Washington Principles (no. XI) describe alternative dispute resolution (ADR) mechanisms as an instrument for resolving ownership issues. Is this also true of disputes involving parties other than governments, or are regular courts the most appropriate venues for these? Alternative mechanisms have been developed, for example by some of the panels present here today, that can also hand down opinions (binding or not) on claims to works of art outside national collections. Mediated settlements with the help of auction houses, the Art Loss Register or the ICOM mediation initiative can serve as examples of the obvious need in the art market for alternatives to litigation in this area. Can one, however, also discern procedural elements that are of key importance in search of a fair and just solution? And, given the fact that many of these disputes are international in character, is there a need for more international coordination at this level, or for an independent international organisation to advise or carry out research?
These thoughts underpinned the guidelines for the symposium's programme. We have tried to focus on issues that are common to participants from many different countries and different legal and historical backgrounds, and endeavoured to take the responses to this questionnaire (introduced in an earlier stage) into account. We hope to take the discussion on some of these points a step further, even though one day is not enough to explore all these matters in depth or to do justice to all the relevant points of view.
For the full programme, please click here.
For practical information and contact details, please click here.