The Time Is Now: Why the United States Should Follow the United Kingdom's Lead and Implement a Federal Nazi-looted Art Spoliation Advisory Panel

• Jurisdiction: United States,Federal
• Citation: Vol. 44 No. 3
• Publication year: 2016

The Time is Now: Why the United States Should Follow the United Kingdom's Lead and Implement a Federal Nazi-Looted Art Spoliation Advisory Panel

Chloe Ricke^*

Table of Contents

I. Introduction...............................................................................666

II. The Need for World War II Art Restitution: A Revival of Public Awareness..................................................667

A. Nazi Looting and Failed Post-War Claims..............................667
B. Heightened Public Awareness.................................................669
C. The International Legal Response: Non-binding Principles ... 670
D. Domestic Implementation of International Non-binding Principles.................................................................................674

III. Improving U.S. Compliance With Its International (and Moral) Obligations..........................................................676

A. The Failure of Traditional Litigation.......................................676
B. ADR Leads to a "Just and Fair" Resolution...........................681

VII. The United States Should Follow the United Kingdom's Approach..................................................................689

VIII. Conclusion..................................................................................690

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I. Introduction

Generally speaking, looted art is any object that has been taken from its legal owner through an act of war.¹

In Nazi Germany, between 1933 and 1945, artworks were taken through forced confiscation, foreclosure, and dispossession from individuals persecuted by the Nazis.² In the years following, potential claimants sought restitution for the looted art. However, despite international support for Nazi-looted art restitution, the legal structures in place to effectuate this restitution have impeded claimants from ultimately recovering. In response to this problem, some nations have implemented alternate dispute resolution (ADR) methods to address the concerns of claimants. These ADR methods more effectively balance the competing interests of claimants and art possessors than traditional litigation methods while still complying with the multilateral international agreements aimed at addressing Nazi-looted art restitution.

This Note provides a potential solution—through the use of ADR—for the United States to implement that addresses the legal barriers to successful Nazi-looted art restitution. This Note first provides background information on Nazi-looted art and early restitution attempts. Then, it details the most recent international agreements, which seek to unify the goals of several nations in recognizing Nazi-looted art restitution claims. This Note will clarify both the enforceability of and the suggested means of execution of the principles set out by these agreements. This Note will then examine the common barriers to claimant success. Finally, this Note will analyze attempts by the United States and the United Kingdom—two nations influential in the international art market—to resolve restitution claims brought by Holocaust-Era looted art victims. Why choose to examine and compare the approaches taken by the United States and the United Kingdom in resolving these claims? Both nations are signatories of the Washington Conference Principles and the Terezín Declaration—multilateral agreements governing looted art restitution—and both have met roadblocks in resolving claims through litigation while attempting to put ADR mechanisms in place. In comparing the systems of these two nations, this Note will analyze each

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nation's application of the principles set forth in multilateral international agreements and their solutions for working around barriers to restitution, including the use of ADR methods.

II. The Need for World War II Art Restitution: A Revival of Public Awareness

The Nazis' victims lost their positions in society and their possessions; in countless cases, they lost many family members and friends, and in more than six million cases, their lives.³

A. Nazi Looting and Failed Post-War Claims

In an attempt to disenfranchise the persecuted, as well as amass collections of high-value art for high-ranking Nazi officials, Hitler's regime dispossessed more than 600,000 paintings, of which up to 100,000 are still missing.⁴ The regime took these paintings by various "legal" means. In the early years of the regime, statutes sustaining technically voluntary sales, exchanges, donations, and auctions enabled persecuted art owners who were unable to earn a living because they were excluded from economic life to make money by selling their possessions for prices far below the fair market value.⁵ Due to prohibitions of Jewish ownership of businesses, these regulations resulted in widespread economic persecution.⁶

Artwork that conformed to Hitler's taste, such as Dutch and Flemish Old Masters pieces or those from the German Romantic period, were collected under the "Ordinance on the Registration of Jewish Property," by issuing tax assessments, and through other looting techniques.⁷ These pieces, considered by the regime to be the best of the confiscated art, were presented to Adolf Hitler for future display in his Fuhrer museum, planned for

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construction in Austria after the end of the war.⁸ While Hitler and leading Nazi politician Hermann Goring led this "collecting frenzy," ordering the taking of all such valuable art from predominantly Jewish holdings, the Nazi party also looted "degenerate" artworks, but as the means to a decidedly different end.⁹ These so-called "degenerate" artworks were modern twentieth-century pieces deemed to be ideologically opposed to the Nazi Regime.¹⁰ These works were stripped of value when they were removed from all German museums in 1937, disproportionately collected by Jewish citizens, and then coercively sold by those same persecuted collectors for low prices when they sought to flee Germany.¹¹

Looted artworks were not subject to the price freezes imposed upon other goods during the war, allowing art pieces to appreciate during an otherwise economically stagnant period.¹² This appreciation made art a safe, tangible investment.¹³ As a result, looted art pieces found their way out of persecuted collectors' hands and into both museum and private collections, ultimately becoming subject to restitution claims in the years following the end of World Warll.¹⁴

Since many artworks were looted through technically legal means during Hitler's reign, demands for reparation were rejected in German courts in the years immediately following the war.¹⁵ Additionally, following World War II, the Allied forces generally did not return stolen works to individuals, but

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rather to their countries of origin, where the pieces were often placed in museums.¹⁶

The first restitution acts passed by Allied forces in 1947 and 1949 allowed one who had taken possession of property from 1933 to 1945 to refute an assumption of persecution—or that they possessed looted property—simply by showing that they had paid market price and that the allegedly persecuted individual had received payment.¹⁷ Oftentimes, the person in possession of looted property either paid for it or took it by otherwise legal means under the legalized forced confiscations, foreclosures, and dispossessions of the Nazi regime.¹⁸ In these cases, possessors of looted property avoided prosecution under the first restitution acts by merely refuting any wrongdoing.¹⁹ This lenient standard is the reason that the first restitution acts were largely unsuccessful at providing restitution to claimants.²⁰

B. Heightened Public Awareness

Public attention concerning the return of Nazi-looted artwork has grown in recent decades, further encouraging restitution for victims of Nazi-era looting, quite possibly as a result of three reasons: (1) archives have opened across the world, including in formerly Soviet-occupied East Bloc countries, allowing in-depth provenance²¹ research to be conducted to trace the ownership history of looted pieces; (2) the fall of the Berlin wall and reunification of Germany resulted in state-sponsored investigations into looted art, and (3) the advent and growing popularity of the internet allowed for the efficient proliferation of information and communications regarding looted art.²² With a heightened public awareness of restitution possibilities

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and increased facilitation of provenance research, victims who have been despoiled, as well as their heirs, can more efficiently identify the current possessor and prove their ownership of a piece of artwork.²³

An example of one key tool in the growth of provenance research is the Art Loss Register (ALR), a for-profit company that acts as the "world's largest private database of lost and stolen art."²⁴ The ALR was founded in 1990, is headquartered in London, and has had a hand in the recovery of nearly $320,000,000 worth of stolen pieces. According to its website, "the origin of the ALR was The International Foundation for Art Research (IFAR), a not-for-profit organization based in New York. In an attempt to deter international art theft, IFAR established an art theft archive in 1976 and began publishing the 'Stolen Art Alert,' " which led to the founding of the ALR.²⁵ This relatively new ability to pursue more restitution claims than ever before has helped lead to the modern international agreements discussed below.

C. The International Legal Response: Non-binding Principles

With the recent increased ability to resolve, and interest in resolving, looted artwork provenance, nations have come together to provide a framework for accomplishing the mutual goal of providing restitution for Nazi-looted art claimants. As restitution claims increased throughout the 1990s, a number of nations realized that these claims would need to be dealt with on an international level.²⁶ In 1998, the Washington Conference on Holocaust-Era...