Part III: Roadblocks and Challenges to Restitution of Nazi-Confiscated Art

April 29, 2024

Why have more than 16% of paintings and other creative works stolen by Nazis never been returned? The answer is a complex one.

Despite 44 nations participating in the Washington Conference on Holocaust-Era Assets,¹ which endorsed the Washington Conference Principles on Nazi-Confiscated Art on December 3, 1998 ("Washington Principles") to address the restitution of artworks looted by the Nazis during World War II,² and the 47 countries that endorsed the 2009 Terezin Declaration ("Declaration") which incorporated the Washington Principles,³24 of these countries have made little or no meaningful progress in implementing the Washington Principles or the Declaration.

As Part III of a four-part series, this installment delves into the roadblocks countries around the world are facing when trying to implement and enforce the Washington Principles and the Declaration.

International Responses to Combat the Nazi-Confiscated Art Problem

While the Washington Principles initiated efforts to address Nazi-confiscated art, the Declaration built upon these principles. Unlike the Washington Principles, the Declaration acknowledged forced sales and sales under duress, expanding the scope of restitution efforts. It also advocated for modifications to existing laws to facilitate restitution, while also addressing technological advancements such as the use of the Internet for information dissemination and establishing a central registry for Nazi-confiscated art. Nevertheless, some experts say, "much of the worldwide momentum for art restitution embodied in the Washington Principles has been lost and replaced by malaise, indifference, and frustration."⁴

On March 5, 2023, the report "Holocaust-Era Looted Cultural Property: A Current Worldwide Overview" ("Report") analyzing how countries have implemented the Washington Principles and the 2009 Terezin Declaration was released by the World Jewish Restitution Organization ("WJRO").⁵ WRJO categorized the level of progress made by each country based on a rating system of the following factors: (i) has done historical research on the subject (albeit through a historical commission or otherwise); (ii) does provenance research on its collections; (iii) has a claims process (whether through its restitution commission or otherwise); and (iv) has made a substantial amount of restitutions.⁶

Countries Making "Little" or "No" Progress Against Nazi-Confiscated Art

According to the Report, the following 24 countries have made "little" or "no" progress in adhering to the Washington Principles and/or the Declaration: Albania, Australia, Belarus, Bosnia-Herzegovina, Brazil, Bulgaria, Cyprus, Denmark, Estonia, Finland, Ireland, Latvia, Lithuania, Malta, Moldova, Montenegro, North Macedonia, Portugal, Romania, Russia, Spain, Turkey, Ukraine, and Uruguay.⁷ At a high level, this rating is based on each country's ability to adhere to the four aforementioned factors.⁸

Country	Historical Research Projects	Provenance Research	Claims Process/ Restitution Commission	Restitutions [Substantial number]
Albania
Australia		X
Belarus	X
Bosnia-Herzegovina	X
Brazil
Bulgaria	X
Cyprus
Denmark
Estonia	X
Finland		X
Ireland		X
Latvia	X
Lithuania	X
Malta
Moldova	X
Montenegro
North Macedonia	X
Portugal	X
Romania	X
Russia	X
Spain
Turkey
Ukraine	X
Uruguay

As indicated in the above chart, none of these 24 countries have a claims process or Restitution Commission, nor have they made a substantial number of restitutions. This begs the question: Are there roadblocks that these countries are struggling to overcome?

Misconceptions

At first sight, it appears that the countries that do not satisfy the factors of the Report might fail to do so for reasons that remain unclear. The Report does not have a "not applicable" factor to cover countries that do not satisfy the four-factor test because the complexities and history of Nazi-looted art do not apply to them. For example, Nazi-confiscated art or other cultural objects have not been found in Cyprus⁹ or Bosnia.¹⁰ Further, there are countries where art restitution claims have not been made despite having the laws in place to file such a claim, leaving the enforceability of these laws untested.¹¹

It is also unknown whether museums and institutions in certain countries have ever conducted provenance research, and thus, whether they have satisfied the second factor of the test is also unknown. For example, Albania,¹² Cyprus,¹³ Brazil,¹⁴ Latvia,¹⁵ Malta,¹⁶ Montenegro,¹⁷ North Macedonia,¹⁸ and Uruguay¹⁹ are all countries that may conduct provenance research, but the WRJO is simply unaware of them doing so.

Contrarily, some countries have failed to satisfy the factors of the Report because they are experiencing roadblocks caused by multiple reasons, which we can only speculate based on the findings in the Report. These reasons include but are not limited to, museums' lack of provenance research and lack of records, the government's absence of restitution commissions, and flaws in its laws.

Role of Museums

Unfortunately, "probing the provenance of a collection is not considered an essential part of museum practice."²⁰ For instance, Denmark's Ministry of Culture has a policy that provenance research will only be carried out if a museum is faced with a restitution claim."²¹

Some countries' museums, such as ones in Finland, face a different type of roadblock. Finland's efforts to combat Nazi-looted art have been blocked by the lack of provenance research on suspect artworks, despite stolen or expropriated property being discovered in Finland.²² We suspect that this blockage is partially caused by the absence of internal pressure placed on museums by Finland's government to research artwork that may have questionable provenance,²³ and partially caused by a lack of necessary financial resources to conduct such research.²⁴ Similarly, the WRJO has also found Portugal blocked from fighting the good fight of Nazi-looted art restitution due to financial constraints.²⁵

Other countries do not provide a reason for why their museums do not conduct provenance research.²⁶

Role of the Government

According to the Report, 42 of the 47 countries that endorsed the Terezin Declaration have not established a restitution commission to handle claims, and several of those same countries have zero restitution laws at all."²⁷

On one hand, there are countries where restitution laws exist, but for one reason or another, the laws seem to be ineffective. In Romania, it may be that the restitution laws conflict with other existing laws or are too complex to be efficiently enforced.²⁸ In Malta, the laws do not address special circumstances like heirless Nazi-looted art.²⁹ In Ukraine, the laws regulating the restitution of Nazi-confiscated art do not apply to private individuals.³⁰ In other words, even if an individual knows they possess Nazi-confiscated art, they may have no incentive or obligation to report it. In Spain, buyers may retain works purchased if they did not know the works had been stolen.³¹ In Belarus, restitution is simply considered "taboo."³² In Macedonia, the Law on Denationalization was issued covering communal property and private property confiscated after August 1944, but it only applied to those who were Macedonian citizens on the date of the law's enactment.³³ Similarly, Russian restitution laws exclude art that "belongs" to legal entities or museums and art considered to be partial compensation for cultural damage caused to Russia by Germany and its military allies.³⁴

On the other hand, some countries do not have restitution laws at all and the public is not privy to the reason(s) why.³⁵

What Next?

Whether it's for a lack of applicability, funding, laws that need to be updated, or other unknown reasons, dozens of countries have not fully implemented the Washington Principles and the Declaration. Nevertheless, all hope is not lost. To read our suggestions on how countries could better implement the Washington Principles and the Declaration, and our predictions of the future of art restitution, stay tuned for Part IV of this four-part series to be released on May 13, 2024.

[1] These countries include Albania, Argentina, Austria, Australia, Belarus, Belgium, Bosnia-Herzegovina, Brazil, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Israel, Italy, Latvia, Lithuania, Luxembourg, Macedonia, Netherlands, Norway, Paraguay, Poland, Portugal, Romania, Russia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine, United Kingdom, United States, and Uruguay. See COMMISSION FOR LOOTED ART IN EUROPE, https://www.lootedartcommission.com/Washington-principles (last visited Mar. 16, 2024).

[2] The Washington Principles consists of the following 11 non-binding principles:

1. Art that had been confiscated by the Nazis and not subsequently restituted should be identified.
2. Relevant records and archives should be open and accessible to researchers, in accordance with the guidelines of the International Council on Archives.
3. Resources and personnel should be made available to facilitate the identification of all art that had been confiscated by the Nazis and not subsequently restituted.
4. In establishing that a work of art had been confiscated by the Nazis and not subsequently restituted, consideration should be given to unavoidable gaps or ambiguities in the provenance in light of the passage of time and the circumstances of the Holocaust era.
5. Every effort should be made to publicize art that is found to have been confiscated by the Nazis and not subsequently restituted in order to locate its pre-War owners or their heirs.
6. Efforts should be made to establish a central registry of such information.
7. Pre-War owners and their heirs should be encouraged to come forward and make known their claims to art that was confiscated by the Nazis and not subsequently restituted.
8. 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.
9. If the pre-War owners of art that is found to have been confiscated by the Nazis, or their heirs, can not be identified, steps should be taken expeditiously to achieve a just and fair solution.
10. Commissions or other bodies established to identify art that was confiscated by the Nazis and to assist in addressing ownership issues should have a balanced membership.
11. Nations are encouraged to develop national processes to implement these principles, particularly as they relate to alternative dispute resolution mechanisms for resolving ownership issues.

See Washington Conference Principles on Nazi-Confiscated Art, Dec. 3, 1998 [hereinafter Washington Principles], available at https://www.state.gov/washington-conference-principles-on-nazi-confiscated-art/.

[3] 2009 Terezin Declaration on Holocaust Era Assets and Related Issues, Prague Holocaust Era Assets Conference, June 30, 2009 [hereinafter Terezin Declaration], available at https://www.state.gov/prague-holocaust-era-assets-conference-terezin-declaration/ (last visited Mar. 17, 2024). The Washington Principles were further strengthened by the 2022 Terezin II Conference. See FPC Briefing, 25th Anniversary of the Washington Principles on Nazi-Confiscated Art: Best Practices & the Way Forward, U.S. Dep't of State (Mar. 5, 2024), https://www.state.gov/briefings-foreign-press-centers/25th-anniversary-of-the-washington-principles-on-nazi-confiscated-art#:~:text=In%20addition%2C%20five%20European%20nations,claims%20to%20Nazi-looted%20art.

[4] William D. Cohan, The Restitution Struggle: Malaise, Indifference, and Frustration, ARTnews (Sept. 11, 2013, 8:00 AM), https://www.artnews.com/art-news/news/the-restitution-struggle-2286/.

[5] Wesley A Fisher & Ruth J. Weinberger, Holocaust-Era Looted Cultural Property: A Current Worldwide Overview, World Jewish Restitution Organization, The Conference on Jewish Material Claims Against Germany, 5 (Mar. 5, 2024) [hereinafter The Report], https://art.claimscon.org/wp-content/uploads/2024/03/11-March-2024-Holocaust-Era-Looted-Cultural-Property-A-Current-Worldwide-Overview.pdf.

[6]The Report, supra note 5, at 6; see also CNN, https://www.cnn.com/2024/03/06/style/nazi-looted-art-report-wjro-tan/index.html (last visited Mar. 17 2024). For more information about the seven countries have made major progress, the three countries that have made substantial progress, and the 13 countries that have made some progress, see Part I and Part II of this series released on April 2, 2024 and April 15, 2024.

[7]Id. at 6.

[8]Seeid. at 6, 12-13 (summarized in the below chart).

[9]The Report, supra note 5, at 39.

[10]Id. at 30.

[11]See, e.g., id. at 106 (Turkey); see also, e.g., Office of the Special Envoy for Holocaust Issues and Bureau of European and Eurasian Affairs, "Justice for Uncompensated Survivors Today (JUST) Act Report," U.S. Dep't of State (Mar. 2020), https://www.state.gov/wp-content/uploads/2020/02/JUST-Act5.pdf.

[12]Id. at 17.

[13]The Report, supra note 5, at 39.

[14]Id. at 31.

[15]Id. at 66.

[16]Id. at 71.

[17]Id. at 73.

[18]Id. at 77.

[19]Id. at 114.

[20] CNN supra note 6.

[21]The Report, supra note 5, at 42.

[22]Id. at 40.

[23]Id.

[24]Id.

[25]Id. at 85.

[26]See, e.g., id. at 30 (Bosnia), 71 (Malta).

[27]Id. at 6.

[28]Romania, World Jewish Restitution Organization, https://wjro.org.il/our-work/restitution-by-country/romania/ (last visited Apr. 13, 2024).

[29]The Report, supra note 5, at 71.

[30]Id. at 107.

[31]Id. at 98; see also Cassirer v. Thyssen-Bornemisza Collection Found., 89 F.4th 1226 (9th Cir. 2024) (if Spanish law applied, the plaintiff in a Nazi-looted artwork restitution case would not recover the art).

[32] The Documentation Centre for Property Transfers of the Cultural Assets of WWII Victims, "The Terezín Declaration Ten Years Later," 17 (June 18-19, 2024), http://www.cdmp.cz/en/wp-content/uploads/Terez%C3%ADn_Declaration_Ten_Years_Later_EN_web.pdf.

[33]The Report, supra note 5, at 77.

[34]Id. at 88.

[35]See, e.g., id. at 30 (Bosnia), 44 (Finland), 72 (Maldova).