Official Texts & Speeches

The Role of the United States Government in Art Restitution 

Remarks by J. Christian Kennedy, Special Envoy for Holocaust Issues
Potsdam, Germany
April 23, 2007

Thank you, Professor Schoeps, for the opportunity to speak at this conference and to meet with people who have been and remain deeply engaged in the field of art restitution.  This is a subject that has drawn increasing public attention in the last few years as prominent cases have been resolved or have reached the stage where they have become newsworthy.  The vibrant and active art market of today has added a new dimension to the subject of looted art.    

The displacement of cultural items has been a feature of warfare for centuries, but it reached a new high in the massive art looting that occurred during World War II.  The Allies were well aware during the war of this looting and in January 1943 issued the London Declaration in which eighteen countries reserved the right to declare invalid any transfers of property both in Germany and in the countries the Nazi forces occupied during the war.  

Many of you have been working on provenance issues and have a full appreciation of the lengths to which the Nazi regime went to acquire particular artworks, and to denigrate or even destroy art that the Nazi leadership considered to be degenerate.  The result was the complete disruption of European museums and private art collections.   Additional artworks were destroyed during the hostilities or disappeared during the ensuing occupation.  It took approximately five years after the war to locate, sort, identify and return artworks to the countries from which they had been taken, and additional time for individual countries to restore the works to their rightful owners. 

With some important exceptions it was not until the collapse of communism that a serious effort commenced to identify artworks that still had not been returned to their rightful owners.  Thus more than sixty years later we are all still trying to put the pieces back together, with varying degrees of success. 

The United States was spared the ravages of the war, but as one of the Allied Powers it had a major role in returning artworks found in salt mines and other places of safekeeping after the war.  That role has been described in detail in a relatively new book entitled “Rescuing Da Vinci” by Robert  Edsel.  It is not an academic study, but rather is an effort to describe in popular terms the work of a few experts in the immediate post war period to return art to the countries where it was located prior to the war. A scholarly study of both the confiscation of artworks and the work that the Allies did to return them is the Rape of Europa by Lynn Nicholas, a work that is familiar to all of you.  Public Television in the United States recently did an excellent  documentary drawing on the research done by Dr. Nicholas and Mr. Edsel. 

In 1998, the Department of State convened the Washington Conference on Nazi Looted Assets.  The conference dealt with property restitution, insurance issues, and Nazi gold among other things, but a major focus of the Conference was looted art.   Representatives of the 44 states attending the conference accepted by consensus the Washington Conference Principles on Nazi-Confiscated Art.  These highly generalized Principles spawned other documents that together with the Principles have come to guide the international art trade.  In large part because of these Principles, prospective buyers of artworks with potential Holocaust-related provenance problems have become very cautious, and would-be sellers of such works have researched them carefully in an effort to show that a given work in question has a clear and clean history.

Because art claims in the United States have generally had a claimant on one side and a private institution or individual collector on the other, the role of the U.S. Government has been limited on specific cases.  We continue as a government to urge that foreign governments and institutions observe the Washington Principles and return artworks to their rightful owners.

The Washington Principles are based on the simple premise that artworks displaced during the 1933-1945 period should be returned to rightful owners. From our experience in the immediate post war period, we are aware that this is a complex subject and that it is quite possible for objective experts to come to quite different conclusions in any one case.  The idea behind the Washington Principles was not to establish a specific process or mechanism to achieve the objective of returning art to rightful owners, but instead to provide guidelines that could be applied by all countries under their own national laws, procedures and practices.  Nevertheless, the penalties for not following the Washington Principles are, in fact, quite grave, and I shall return to them in a minute.

The Principles urge the opening of archives, the allocation of resources to identify and publicize artworks confiscated by the Nazis, and the establishment of a registry of such information.  Most importantly, the Principles encourage the adoption of alternative dispute resolution mechanisms for resolving ownership issues. 

The genius of the Washington Principles lies in the very characteristic for which they have been criticized – the lack of any specific enforcement mechanism.  Because there is no way to enforce these Principles, they have assumed a moral authority that is probably more effective than the threat of civil or criminal proceedings.  And this, ladies and gentlemen, is the grave penalty that I alluded to earlier.  The opprobrium of one’s peers.  Those who buy or sell on the international art market are left with little choice but to factor the Principles into their plans if they wish to participate CREDIBLY in that market.  The penalty for failing to do so properly is to lose one’s good name in the art world.  And this, I will assert, is a punishment more far reaching, a sentence more grave than most legal proceedings could ever hand down.   

Art Restitution in the United States

As I noted above, art restitution in my country has generally involved a private citizen who discovers that an artwork once held by his or her family is now hanging in a museum or private collection.  A claimant new to the art field may need to hire experts who can help with this process.  On the other side of these cases, we find the holder of the art, usually a museum or collection.  This holder may have done some provenance research on its holdings but has sometimes been unaware of the complete history of the individual works.  Usually working through their respective attorneys, the two parties attempt to establish and agree on the facts of the case, and then to work out a settlement.  Agreements between parties without resort to judicial channels have been frequent.   If the talks break down, or if they fail to get started at all, the claimant has the option of turning to the courts. 

Most major museums in the United States have posted on their websites the provenance of their holdings known to have changed hands in Europe between 1933 and 1945.  A portal operated by the American Association of Museums links these websites, so that a potential claimant can check all participating museums for a particular work simply by entering the identification data on the portal website. 

This portal now includes 25,424 artworks held by  155 museums in the United States, including the National Gallery, the Metropolitan Museum in New York, the Getty in Los Angeles, the Chicago Art Institute, and the Boston Museum of Fine Arts, among others.  You will recognize all of these names as some of the most important art museums in the United States.  Approximately 7000 of these artworks were added to the portal since July 2006.  In other words, this is a work in progress, but significant progress I would maintain is being made.  Nevertheless, there is more to be done.   Many smaller museums, particularly University museums, have not submitted data on their holdings.  They maintain, as do some museums in Europe with which you are familiar, that the cost of doing provenance research is more than they budget will allow.  Complete catalogues of such collections are not available, and substantial portions of these collections are not on display. This is a recognized potential gap in our system.  The Association of Museums continues to work to close that gap, and the United States Government  strongly supports these efforts. 

While the government can urge institutions to participate voluntarily in programs such as the one sponsored by the Museum Association, the government does not have any leverage to force compliance, for one simple reason: With the exception of a few federally owned and operated institutions,  museums in the United States tend to be owned and operated privately, or by state or municipal authorities.  This leaves no specific role for the federal government in the art restitution process.  This is a major difference between art restitution in the United States and in Europe, where national governments often have full responsibility for the majority of museums. 

The Washington Principles do not suggest penalties but instead are designed to guide claimants and holders of challenged art in their deliberations.  In addition, the Principles apply some pressure to both parties to research claims carefully and to rely on documentable facts rather than to engage in emotional debate.  This leads both parties to an objective appraisal of their respective cases, rather than put them in the position of advancing legal arguments that frequently deal solely with procedural issues instead of addressing the circumstances under which the artwork in question moved from one holder to another during the turmoil that prevailed in Europe during the Nazi era and the immediate postwar period.

We believe that this is the most efficacious way to correct the misdeeds of the 1933-45 period.  It has also had the unintended, but nevertheless very positive, effect of making the entire art community aware of its long-term interest in a transparent and open international art market. 

Artworks which may have been taken by individual American soldiers when they departed Europe for discharge in the post war period may become another potential source of claims.  Some notable cases such as the Quedlingberg collection have come to public attention over the years, but while that and other cases have created some sensation they have been relatively few in number.   We are not aware at this time of any similarly prominent cases that have come to light in the past decade or so.  Nevertheless, there is some speculation that as World War II veterans, now in their 80s, pass from the scene, their heirs will come across souvenirs and perhaps more valuable items taken from Europe in the 1940s. We cannot rule out the possibility that in settling the estates of these veterans,  families will find a few items of significance, both in monetary and in cultural terms. 

 

Claims Against Foreign Countries

One area in which we do become involved is  a claim by an American citizen – either a survivor, or the heir of a survivor or victim -- against a foreign country.  Under international practice, a country can formally present a case to a foreign state only if the property in question was held by its citizen at the time of the taking.  Holocaust victims and survivors were generally not US citizens in the 1930’s and 1940s when the property was taken.  But while the United States cannot formally represent its citizens in such cases, we can and do attempt to make certain that today’s American citizen is treated fairly and has the full benefit of the foreign country’s law. 

We have had one such case on our agenda now for several years.  The claimant has what appears to be a well-documented claim for a major painting by a well-known artist.  And you will have to forgive me the vagueness of the description but this is an ongoing case and I cannot go into detail.  The claimant made a major effort to present his case to the holder of the painting, and the Department of State followed up with strong demarches both to the institution holding the artwork and to the government of the country in which the institution is located.  Unfortunately, our best efforts have not been successful and the case is now in litigation. 

In this particular case we believe it would have been helpful had the two parties proceeded in the manner envisioned by the Washington Principles.  Instead the parties have had heavy legal bills, the claimant has experienced considerable delay and the institution holding the object has incurred considerable embarrassment because of its unwillingness to engage with the claimant.  We will continue to urge the parties in this and other cases to find a forum where the issue can be resolved.   As it is, this case is a prime example of what happens when a Holocaust-era art restitution case winds up in the courts, rather than being handled through direct negotiations. 

Russia

One specific area in which we have been involved is the submission of claims on behalf of American citizens under the Russian law governing  claims by private individuals for artworks removed from European countries by the Soviet Red Army at the end of the war.  As you all know, the Russian law provides that the country of the claimant’s current nationality must present such cases to the Government of the Russian Federation.  After close examination by the Ministry of Culture, the final determination is made by the Duma in each individual case.  There have been some prominent  European cases under this law, the return of  the Sarospatak Library to Hungary being a particularly good example. 

The United States has worked on three such cases.  All remain under consideration of the Russian government authorities and I think you will understand that discussing them in further detail while the adjudication process is underway would not be appropriate.  Nevertheless, we remain optimistic that the Russian Federation will view these cases sympathetically. 

UNESCO

I would like to make a brief mention of one final matter in the art restitution area: the UNESCO proposed principles for the restitution of artworks displaced by World War II.  Together with representatives of most of the countries represented here, the United States Government has been working, on these principles.  The UNESCO website has a draft of those principles prepared by the UNESCO Secretariat.  A UNESCO drafting group met in July 2006 and again in March 2007 to propose revisions to the draft.  The UNESCO Executive Board considered the results of those sessions earlier this month.   

Although the revised text after the UNESCO Executive Board’s deliberations is not now available, and may not be so for several more weeks, the general thrust of these principles is clear.  They are to be non-binding, and they will deal primarily if not exclusively with claims between governments.   If these principles remain in their current form, they may help to resolve art claims between states, perhaps in Europe, where disputes over artworks ownership tend to arise between governments.  As of now, they seem to have less applicability in the United States.  In my country, as I have noted previously, claims are generally between institutions and claimants, both being in the private sector, where the federal government has no direct role.

Conclusion

The point that I want to leave with you today is the following.  The role of the United States Government in art restitution matters is significantly different from the role of many European governments.  Our government has not been involved in cases such as those adjudicated by the Dutch Art Restitution Commission, nor has it been involved in direct negotiations with other states as have some European countries.  We are nevertheless very much committed to the principle of returning property to its rightful owners in the field of art restitution.  As a government, we take every opportunity to encourage the parties to claims related to World War II come to fair and amicable settlements as early as possible.

I appreciate the opportunity to outline my country’s approach to art restitution and look forward to your questions later in the session.