This panel was convened at 2:45 p.m., Thursday, April 9, by its moderator Irina Tarsis of the Center for Art Law, who introduced the panelists: Pierre Ciric of the Ciric Law Firm; Mari-Claudia Jimenez of Herrick Feinstein LLP; and James Martin of Orion Analytical, LLC. *
INTRODUCTORY REMARKS BY IRINA TARSIS ([dagger])
For the 2015 Annual Meeting of the American Society of International Law, the Cultural Heritage and the Arts Interest Group organized a panel on the subject of hot topics in the realm of international art law. Straddling private and public law, relevant topics that could have fallen into the category of "hot" in 2015 but did not get included in the survey panel were comparative resale royalty right schemes, destruction of Islamic art and cultural patrimony in the ISIS-occupied territories of Syria and Iraq, and tax issues for the expanding global art market. In short, in the 21st century, there is a plethora of art law and cultural property subjects ripe for examination through an international law prism. Ultimately, the three topics featured this year included: (1) difficulties and innovations in authentication of visual arts and the use of scientific analysis to facilitate the process of separating the authentic art works from the proliferating fakes; (2) discussion of the efforts to halt the sale of Native American sacred objects in France; and (3) property claims involving the cultural property nationalized after Fidel Castro came to power following the Cuban revolution.
These topics were selected both for their novelty and their urgency. Just as more and more authentication committees began offering opinions regarding pieces submitted to them for examination, the 165-year old Knoedler Gallery collapsed in 2011 due to the confirmed allegations that it sold fakes. The dozens of lawsuits filed by defrauded collectors set off a chain reaction in the art market. James Martin of Orion Labs, who served as an expert witness for some of the Knoedler lawsuits, addressed the need for due diligence and the benefits offered by testing art works in lab settings.
Mari-Claudia Jimenez, a Partner at the Herrick Feinstein LLP firm in New York, presented a paper on the Cuban art from private collections that ended up in the national museums in Cuba. Some of these artworks have been trickling out from Cuba to find their way to the art market and the auctions in the United States and Europe.
Pierre Ciric, founder of the Ciric Law Firm, discussed the efforts made by him and others on behalf of the Hopi Tribe in order to preclude the French auction houses from selling sacred Native American materials. While the Hopi sacred objects are communal property and cannot be sold by any individual in the Tribe, there have been ongoing auctions of these objects at Hotel Drouot in Paris since 2013. Yet, under tribal custom and tribal, state, and federal law, these objects cannot be sold or given away by any individual. As a result, the sale of such items constitutes the sale of stolen property, which is obviously legally prohibited in the United States and around the world. The Hopi Tribe first enacted statutes specifically prohibiting the sale of the sacred objects in the 1970s. Trafficking in these objects is in violation of the Native American Graves Protection and Repatriation Act. Nevertheless a government body called the "Conseil des Ventes Volontaires" has denied standing to the Tribe and Tribe members in their efforts to obtain adjudication of their claims involving cultural property stolen in the United States and subsequently transported to France. As recently as June 1, 2015 and June 11, 2015, more sacred Native American objects were being auctioned off in France with impunity to the consignor(s).
Cultural Heritage and the Arts Interest Group is a platform for American Society of International Law members to discuss and learn about art and cultural property matters that affect not only world patrimony but also involve international trade and diplomacy. It is clear that best practices in detecting and stopping forgeries or seeking fair and just solutions for those deprived of their cultural property ought to be shared and integrated into all aspects of art trade worldwide. The 2015 offerings tried to present an array of new topics situated at the avant-garde of the international art and cultural heritage issues.
* Mr. Ciric and Mr. Martin did not contribute remarks for the Proceedings.
([dagger]) Founder and Director of the Center for Art Law in Brooklyn, New York. She organized this panel in her capacity as the outgoing chair of the Cultural Heritage and Arts Interest Group, where she was in office between 2012 and 2015.
THE FUTURE: RESTITUTING LOOTED CUBAN ART
By Mari-Claudia Jimenez *
While most people are aware of the looting and destruction of art that took place at the hands of the Nazis before and during World War II, the widespread plunder and nationalization of art that has occurred in Cuba since the Cuban revolution has largely gone under the radar. Much as occurred with Nazi looted art, which came to be addressed decades after the works were originally looted, the topic of the art that was looted and stolen during and after the Cuban Revolution is only recently beginning to surface as recent changes in Cuba encouraged families to begin to address their history of loss. How the restitution of Nazi- looted art has been handled in the decades following the war provides an instructive backdrop for Cuba and its eventual handling of its legacy of expropriation and nationalization.
It took nearly half a century for European nations to fully recognize the issues involved in restituting Nazi- and Soviet-era assets, and only in the past decade or so have these countries widely accepted and addressed the ethical significance of returning objects of cultural and artistic value to their pre-war owners. Beginning with their participation in the Washington Conference on Holocaust-Era Assets (1998),' countries have focused on passing new laws and issued directives for state-run museums on the identification and return of art works stolen during the Nazi era. Most recently, the progress generated by these measures was evaluated at the Prague Conference on Holocaust Era Assets, which took place in June 2009. (2)
In surveying the cultural property restitution programs enacted by European countries, a clear divide emerges between those nations that have taken concrete steps towards resolving claims and those that have intentionally delayed or outright refused to implement restitution schemes for Holocaust victims. Countries such as Germany, Austria, the Czech Republic, France, the Netherlands, and Great Britain fall into the former...