INTRODUCTION I. THE NAPOLEONIC REVOLUTION AND THE CREATION OF FRANCE'S MUSEUMS A. Napoleon and the Confiscation of Art at Home and Abroad B. The Second Treaty of Paris II. DEVELOPMENT OF THE LAW OF RESTITUTION A. Looting and War: From Prize Law to Nationalism and Cultural-Property Internationalism B. Methods of Restitution Today: Comparative Examples 1. The Elgin Marbles and the Problem of Cultural-Property Internationalism 2. The Italy-Met Accord as a Restitution Blueprint III. RESTITUTION OF FLEMISH ART AND POSSIBLE SOLUTIONS IN PUBLIC AND PRIVATE LAW A. Why Should France Return Flemish Art Now? 1. Nationalism 2. Morality and Legality 3. Universalism B. Possible Solutions in Private International Law C. Possible Solutions in Public International Law D. The Italy-Met Accord as a Model for Formal Negotiation CONCLUSION INTRODUCTION
On June 20, 1939, Adolf Hitler called upon Hans Posse, one of his chief advisors, to establish the Sonderauftrag Linz ("Special Project Linz")--a cultural complex in the Fuhrer's hometown. The showpiece of the propagandistic cultural center would be the Fuhrermuseum, a grand museum housing the most revered European artwork from every century. (1) By the end of the war, the Nazis had stolen more than 21,000 paintings, sculptures, and other art pieces for Hitler's museum. (2) Upon discovering the large-scale pillaging when the war ended, (3) the Allies mounted a well-publicized campaign to return the stolen art to its rightful owners. (4) For essentially the first time in history, the international art community launched a coordinated campaign to repatriate stolen art and revise museum acquisition policies. Beyond returning many of the stolen works, the postwar movement resulted in the 1954 Hague Convention, which conceived the art world's newest buzzword: "cultural property." (5)
Nearly two centuries before Hitler's art campaign, revolutionary and postrevolutionary French governments, particularly under Napoleon Bonaparte, oversaw many national political changes that implicated concepts of cultural property. Chief among these was the nationalization of the royal art collection at the Luxembourg Palace, later renamed the Musee Napoleon (and now known as the Louvre). (6) Like Hitler, Napoleon envisioned a spectacular art museum bearing his name and charged French troops with confiscating art at home and in foreign conquests. (7) Between 1794 and 1813, art shipments arrived in France nearly every year from Italy, Belgium, Austria, the Netherlands, and Spain. (8) When the Musee Napoleon became too cramped with the spoils of war, Napoleon transferred art to regional museums throughout the country. (9) Although the 1815 Treaty of Paris ended the war in Europe, most works stolen by the Napoleonic armies remain in the Louvre or in French regional museums today. (10)
Art and cultural-heritage law has matured considerably in the last century, particularly in the wake of the Nazi art-looting operation. The concept of cultural property seems all encompassing, and the artlaw community is consumed by the goals of repatriation and restitution. Despite this intense focus on preserving cultural heritage, current private and public legal regimes prevent most repatriation claims for art stolen before the twentieth century, and the world's museums are not receptive to centuries-removed restitution claims. However, much of the stolen cultural property in today's museums and private collections was, like the artwork taken by Napoleon's armies, stolen during the wars, revolutions, and colonial occupations of the eighteenth and nineteenth centuries.
This Comment explores the current legal paradox that allows for the repatriation of art taken during World War II while maintaining stolen Flemish art in the Louvre for eternity. Part I discusses the Napoleonic revolution and the creation of French museums relying on stolen European masterpieces for their collections. Even though the Second Treaty of Paris required some restitution of Italian and Austrian art, Flemish art taken by French troops remained in France even after peace was declared. Part II analyzes the development of the law of restitution from Roman prize law through World War II and presents examples of how nations today attempt formal and informal repatriation claims. Part III presents an argument for why France should return Flemish art to Belgium and describes what legal routes Belgium might take to retrieve its works of art.
The presence of Flemish art in French museums mimics other situations in which cultural objects were taken from their country of origin. Restitution claims invariably involve a struggle between nationalistic patriotism and our broader aspiration for international appreciation of other cultural traditions. Recognizing the perplexing boundaries of the seemingly broad world of repatriation claims, this Comment offers a replicable private-sector solution based on the accord between Italy and the Metropolitan Museum of Art (the Met) (11) that balances repatriation and the art community's desire for public access to the world's art.
THE NAPOLEONIC REVOLUTION AND THE CREATION OF FRANCE'S MUSEUMS
Throughout the eighteenth century, French nobility and intellectuals made great strides toward improving public access to the arts. (12) Semipublic display and appreciation of art took root in France before the Revolution through the royally sanctioned seventeenth-century exhibits held occasionally by the Royal Academy. (13) In 1737, the first regular public exhibitions began at the Salon Carre in the Louvre. (14) Enthusiasm for art exhibitions amplified, and by the middle of the eighteenth century, the salon model and the public agenda of educating buyers and artists consumed Paris and spread to the provinces. (15) Many of the French regional museums had their roots before the Revolution as local art schools (16) or as meeting places for art connoisseurs (17) in this age of enlightenment.
In 1750, the French monarchy responded to public pressure by opening its collection at the Luxembourg Palace as a spectacle of royal magnificence. (18) As public exhibitions became more popular, more opportunities emerged for both royal and political leaders to use art as propaganda. (19) At the end of the century, France was culturally and politically ripe for revolution. Napoleon would, like previous French governments, take advantage of the public's desire for art and the potential propagandistic use of cultural property to meet his political goals.
Napoleon and the Confiscation of Art at Home and Abroad
Following his rise to political control of France in 1799, Napoleon charged his Minister of the Interior, Jean-Antoine Chaptal, with establishing French economic and cultural superiority in Europe. (20) In particular, the Napoleonic regime believed that filling French regional museums with exquisite art and creating the Musee Napoleon in Paris would make France the cultural center of the Western world. (21) In order to meet this goal, the government first looked to artwork owned by the French people. It nationalized the royal art collection at the Luxembourg Palace and all Church property in France, and later confiscated assets belonging to emigres. (22) Most of this art journeyed directly to regional cities, with local museums acting as "art depots" for the works seized from churches, abbeys, and the homes of royalty. (23)
To complement and expand upon local collections, French armies confiscated select European masterpieces from foreign aristocrats, religious buildings, and museums. (24) In September 1794, the first stolen Belgian artwork arrived at the Musee Napoleon. (25) Over the course of France's foreign conquests, French armies would loot many of Belgium's largest churches and cathedrals and return with some of the most prized Flemish "old master" paintings. (26) Many in France viewed these actions not as looting, but as the restoration of the masterpieces to their rightful place in Europe's new, glorious cultural center--France. (27)
On August 31, 1801, Chaptal issued the Decree of 13 Fructidor year IX (the so-called "Chaptal Decree"), which institutionalized and coordinated local and national art-confiscation efforts. (28) The Decree provided for the distribution of batches of stolen artwork among the Louvre (then the Musee Napoleon) in Paris and fifteen regional cities. (29) Successive waves of artwork, carefully sorted in order to ensure that the French people would be able to view the very best art from around Europe, made their way across France in 1801, 1802, 1805, and 1811, and on to the walls of public museums. (30) In a report describing the Decree, Chaptal explained his initiative as an attempt to create bountiful public art collections featuring "une suite interressante de tableaux de tousles maitres, de tous les genres, de toutes les ecoles." (31)
The fulfillment of the Chaptal Decree communicated a new sense of political legitimacy to French citizens. By creating a museum system filled with confiscated masterpieces, Napoleon showed the affluence of French culture in his nouveau regime. He further demonstrated the strength of French armies, which conquered both foreign nations and their art. French subjects in the provinces had fine art at their fingertips because of the policies of their new government and leader.
The Second Treaty of Paris
When England and its allies defeated Napoleon in 1814, Belgium had been stripped of its artistic treasures, but the walls of French museums remained covered with stolen Belgian artwork. Concerned by this situation, the victorious British general, the Duke of Wellington, and Viscount Castlereagh, the Foreign Secretary, hoped to lay plans for art restoration. In correspondences written by Wellington and Castlereagh, the two men commented that the works in the Louvre and other French museums were effectively military trophies and that France should be required to return the...