About the author: Julia Wang (J.D. Candidate, Class of 2024) is a Contributor to Travaux. Her interests include international trade and development, cultural heritage law, and intellectual property. Julia holds a B.A. in Economics and Art History from Rice University. Before law school, Julia served as a Peace Corps volunteer in North Macedonia and conducted policy research on issues relating to migration, education, and innovation. She speaks French, Mandarin Chinese, and conversational Macedonian.
"Detail from the Elgin Marbles at the British Museum" by Chris Devers, available here.
In its upcoming term, the US Supreme Court is once again tackling the question of restituting Nazi-looted art. The Court has granted certiorari to Cassirer v. Thyssen-Bornemisza Collection Foundation (TBC), which involves the family of a Holocaust survivor seeking the return of the Camille Pissarro painting Rue Saint-Honoré, Afternoon, Effect of Rain from the Spanish museum.
This is not the first time the Supreme Court has addressed this issue. In Republic of Austria v. Altmann, the Court ruled that Altmann could sue the Austrian government through the US legal system to recover five Gustav Klimt paintings that the Nazis stole from her family, including a portrait of her aunt commonly known as The Woman in Gold. On the other hand, last year, in Federal Republic of Germany v. Philipp, the Court held that German Jewish art dealers’ heirs could not sue Germany through the US legal system to recover the Guelph Treasure.
Restitution cases are numerous and complex due to the widespread looting of the Nazi regime. The Nazis established an elaborate state procurement system for looted art from 1933 to 1945. To fulfill his desire to construct a museum in Linz and fill it with the finest art in the world, Adolf Hitler formed the Einsatzstab Reichsleiter Rosenberg and mandated state plundering of other nations’ cultural property. Jews and people persecuted as Jews were the main looting victims in the German Reich and Nazi-occupied territories. The Nazis looted around 600,000 artworks, and an estimated 100,000 paintings are still missing. Therefore, it is imperative to think creatively about how states can use domestic and international laws to help their citizens recover artworks.
One Domestic Approach to Looted Art
Domestic laws can sometimes provide relief in attempts to recover stolen art. For example, the Foreign Sovereign Immunities Act of 1976 (28 USC §§ 1602–1611) plays a central role in US cases like Cassirer v. Thyssen-Bornemisza. While foreign states are generally immune from US jurisdiction, they are not entitled to immunity in cases under the “expropriation exception” in § 1605(a)(3), which expressly exempts certain cases involving “rights in property taken in violation of international law.” The statute also provides in § 1606 that where a foreign nation is not immune, it “shall be liable in the same manner and to the same extent as a private individual under like circumstances.”
In Austria v. Altmann, the Austrian government was not entitled to immunity because the case involved a taking of property that had violated international law. On the contrary, in Germany v. Philipp, the court ruled that the expropriation exception incorporated the “domestic takings” rule, which assumes that what a country does to its own citizens’ property within its own borders is not subject to international law. Since the German government had taken from its own citizens, the looting of the Guelph Treasure was not covered under the exception, and thus Germany was immune from US jurisdiction.
Additionally, art restitution cases often have choice of law implications. Choice of law will have a substantial impact in the eventual decision of Cassirer v. Thyssen-Bornemisza. California law recognizes that even a “good faith purchaser can never acquire good title to stolen property.” Meanwhile, Spain’s adverse possession or “acquisitive prescription” laws effectively override this common law principle. By choosing to apply Spanish law, the Central District Court of California and Ninth Circuit found that TBC lacked “actual knowledge” that the painting was stolen, which was sufficient to allow TBC to keep the stolen artwork. It will remain up to the Supreme Court to decide whether California or Spanish law applies, which will determine the ultimate fate of the Pissarro painting.
Why Domestic Protections Aren’t Enough
Though the Foreign Sovereign Immunities Act may aid some in the US, not all domestic legislation grants the same protections. The widespread lack of effective restitution laws and difficulty in litigating restitution claims have largely impeded restitution efforts around the world.
Many Western European countries established restitution measures soon after World War II (WWII), though these measures were often hindered by bureaucratic or legal constraints. For example, in 1946, Austria enacted the Annulment Act to invalidate all legal transactions that had resulted from Nazi political and economic ideology. However, exiled Austrians faced obstacles in requesting the return of looted artwork because a different provision of Austrian law prohibited the export of works that were important to the country’s cultural heritage.
In Eastern and Central European countries, restitution efforts were much slower, largely due to the Communist regimes that came to power in each country and collectivized and nationalized private property before successful restitution schemes could be created. As a result, many Eastern European countries had to “catch up” with more comprehensive approaches in the 1990s and 2000s.
International Agreements and Their Shortcomings
Apart from their individual domestic laws, states have also come together to address the issue of looted art. International conventions that guide the protection of art and cultural property include the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, and 1995 Convention on Stolen or Illegally Exported Cultural Objects. The UNESCO and UNIDROIT conventions remain the “key frameworks” that guide how institutions and legal bodies treat illegal art and antiquities. However, these mechanisms rely largely on individual states to effectuate restitution. The lack of effective enforcement and implementation on the national level and unpredictability in choice of law contribute to the substantial delay around the world in restituting Nazi-looted art.
To counter the ineffectiveness of individual restitution efforts, countries have specifically addressed the issue of Nazi-looted art with moderate success. In 1998, forty-four signatory countries and thirteen NGOs came together to establish the Washington Conference Principles on Nazi-Confiscated Art. Their goal was to find “just and fair solution[s]” for descendants and heirs of people whose property was stolen. However, the agreement was vague and non-binding, since it did not include any enforcement mechanisms and largely left subsequent proceedings to individual states.
For example, in response to the Washington Principles, Austria created the 1998 Art Restitution Law to effectuate restitution for artwork in public federal museums and institutions. However, even after its passage, claimants struggled to bring suit against private institutions, which were not covered under the law. Despite efforts to research and identify Nazi-looted art, lawsuits to recover works in Germany, Austria, and France have generally failed due to issues like statutes of limitations, rules that favor good-faith buyers, steep filing fees, and a lack of deaccessioning laws.
In 2009, forty-eight countries gathered to create the Terezin Declaration on Holocaust Era Assets and Related Issues. This declaration emphasized the importance of private property restitution and/or compensation and called upon countries that had not yet done so to implement national programs to address Nazi-confiscated property. The 2009 Declaration, along with its 2010 companion guidelines and best practices, called for fair and comprehensive claims processes that do not discriminate based on citizenship or residency and that are expeditious, accessible, and unburdensome to individual claimants.
Like the Washington Principles, this agreement was non-binding, and many signatory countries have either made little progress towards these goals or enacted policies that directly contradict these principles. Poland, which had by far the largest European Jewish community before WWII, has made Nazi-looted art restitutions practically impossible by truncating the statute of limitations on all challenges to allegedly stolen property in 2021. The law has led to the dismissal of thousands of cases that have been under litigation for years. Several other countries, including Croatia, Czech Republic, Lithuania, and Romania, maintain citizenship restrictions or other procedural hurdles that prevent non-citizens from submitting restitution claims, directly violating the Terezin guidelines. Still others, like Hungary and Russia, have done very little to conduct provenance research or to restitute or compensate for Nazi-confiscated art that had been recovered at the end of WWII.
Conclusion
Almost ninety years after Hitler came to power, many of the Nazi regime’s cultural crimes have yet to be resolved. The ineffectiveness of domestic restitution legislation and the lack of enforcement mechanisms for international treaties have resulted in an inconsistent patchwork of laws that make it difficult for countries and claimants to address these long-standing violations of international law. While public attention has increased on the issue of Nazi-looted art and several governments have begun investigations into provenance, many countries have resisted efforts to even identify looted art, let alone provide broader restitution solutions. Legal obstacles, such as good faith exceptions, statutes of limitations, and a lack of adequate recovery mechanisms, will continue to hinder many restitution claims if countries are left to their own devices. International organizations should take on the role of enforcement in order to truly fulfill international agreements like the Washington Principles and right these wrongs that were committed so many decades ago.