Restitution of Looted Art & Property: A Case for a Restitution Panel in the United States

In observance of the 25th anniversary of the Washington Principles on Nazi-Confiscated Art[1], celebrated on March 5, 2024, efforts have emerged to explore the possibility of establishing a restitution panel in the United States.[2] This significant milestone has reinvigorated discussions on the global efforts to address the return of artwork and cultural property looted during the Holocaust. While countries like the Netherlands, Britain, Germany, Austria, and France have established specialized panels to handle these claims, the United States lacks a similar mechanism.[3]

In 1998, the Washington Principles on Nazi-Confiscated Art were adopted at the Washington Conference on Holocaust-Era Assets.[4] These principles provided a framework for the identification, restitution, and return of Nazi-looted art and cultural property. They encouraged countries to adopt policies for investigating claims and resolving disputes over such property based on the premise of "just and fair solutions."[5] This includes considering all relevant documents submitted by the parties, exploring alternative venues for restitution outside the Court systems, basing the cases on the merits, and working toward an expeditious outcome.[6] The Washington Principles have influenced international law concerning the restitution of looted art, although voluntary and lacking enforcement mechanisms.

Nazi-loot claims typically involve art, cultural property, and other assets stolen during the Nazi regime. The restitution of these objects has been a central issue in post-World War II international law, with numerous conventions and treaties aimed at facilitating their return.[7] For instance, the 1995 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property[8] and the 1998 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects[9] both provide frameworks for the return of stolen property. Under such guiding principles, countries such as Britain, Germany, Austria, and France have implemented specific commissions or panels to investigate and adjudicate claims related to Nazi-looted art, offering a more structured approach to restitution.[10]

In the United States, there is no such dedicated panel or commission. Instead, claims are typically processed through the courts, often under the framework of the Foreign Sovereign Immunities Act (FSIA)[11] and the Holocaust Expropriated Art Recovery Act (HEAR Act)[12] of 2016, which extends the statute of limitations for claims related to Nazi-looted art. The private U.S. art market and museums have also played a significant role in the restitution process, but challenges persist. Museums often claim that the provenance of particular works are too complex to resolve or that they have already been legally acquired in good faith, resulting in court involvement.[13] Absent an accessible, centralized restitution outlet, American citizens routinely must navigate the legal system, which is at times more costly and comes with a statute of limitations or laches argument that plaintiffs are unprepared for, or simply don’t deliver a verdict based on the merits. Whether this is preferable or otherwise is a great debate, with museums stepping in to make their voices heard.[14]

Establishing such a panel in the U.S. could help clarify legal standards and improve outcomes for claimants. Arbitration might be easier to hear a case and would avoid many of the legal obstacles discussed (improper jurisdiction, international comity concerns, and statute of limitation). The HEAR Act provides a good foundation for restitution, but it has limitations, including the lack of a central authority overseeing claims and silent on the issue of laches, which a restitution panel could avoid.[15] By establishing a panel, the U.S. could enhance its role in the international community and demonstrate its commitment to the principles outlined in the Washington Principles. A panel could help merge the extensive case precedent established by US court systems and consolidate best practices for use by all restitution panels to help make determinations more cohesive globally. The US is by no means superior on this issue, but with this country already an outlier in terms of holding foreign governments accountable in domestic courts for actions like taking property without compensation, there’s a wealth of knowledge worth translating to a nonlegal outlet for reconciliation.[16]

Ashley S.H. Martinez is a staff member of Fordham International Law Journal Volume XLVIII. 

[1] Off. of the Special Envoy for Holocaust Issues, Washington Conference Principles on Nazi-Confiscated Art (last visited Feb. 2, 2024), https://www.state.gov/washington-conference-principles-on-nazi-confiscated-art/.

[2] Milton Esterow, The U.S. Has No Special Panel for Nazi-Loot Claims. Could That Change? N.Y. Times (Dec. 18, 2024), https://www.nytimes.com/2024/12/18/arts/design/united-states-nazi-art-restitution-panel.html.

[3] Id.  

[4] Supra note 1.

[5] Id.

[6] Supra note 1 (“Just and fairness” though not formally defined, hold a number of these concepts in mind).

[7] See generally Jennifer A. Kreder, Analysis of the Holocaust Expropriated Art Recovery Act of 2016, 20 Chap. L. Rev. 1 (2017).

[8] Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property, UNESCO (1995) (last visited Feb. 5, 2024) https://eca.state.gov/files/bureau/unesco01.pdf.

[9] Convention on Stolen or Illegally Exported Cultural Objects, UNIDROIT (1998), https://www.unidroit.org/instruments/cultural-property/1995-convention/.

[10] See Spoilation Advisory Panel for the UK, https://www.gov.uk/government/groups/spoliation-advisory-panel; See also Devorah Lauter, France’s New Restitution Law for Nazi-Looted Art Reveals the Country’s Inconsistent Efforts in Dealing with Its Complicated Past, ARTnews (Oct. 9, 2023) https://www.artnews.com/art-news/news/new-french-restitution-law-nazi-looted-art-complicated-history-1234681413/; See also Austria’s Art Restitution Advisory Board, Provenance Rsch. and Restitution in the Austrian Federal Collections, https://provenienzforschung.gv.at/en/empfehlungen-des-beirats/.

[11] See Foreign Sovereign Immunities Act of 1976, Pub. L. No. 94‑583, 90 Stat. 2891 (codified as amended at 28 U.S.C. §§ 1330, 1602–1611).

[12] See 22 U.S.C. § 1621 note (2018 & Supp. V 2023).

[13] Benjamin Sutton, US authorities return seven Schiele works to heirs of cabaret performer murdered by the Nazis, The Art Newspaper. (Sep. 22, 2023), https://www.theartnewspaper.com/2023/09/22/egon-schiele-works-returned-fritz-grunbaum-heirs-nazi-loot.

[14] The Art Institute of Chicago et al., Declaration on the Importance and Value of Universal Museums (press release Dec. 2002), https://ia804501.us.archive.org/11/items/cmapr4492/20030000%20Information%20Declaration%20on%20the%20Importance%20and%20Value%20of%20Universal%20Museums.pdf; See also Geraldine Kendall Adams, Does the argument that museums hold collections on behalf of the world still stand?, Museums Ass’n (Jan. 17, 2020), https://www.museumsassociation.org/museums-journal/news/2020/01/17012020-does-universality-argument-still-stand/#.

[15] Supra note 1.

[16] See Swiss Banks Settlement: In re Holocaust Victim Assets Litigation, Swiss Banks (2020), https://www.swissbankclaims.com/ (Hon. Edward R. Korman, of the United States Eastern District, has been applauded for this Executive Summary as he navigates a fine line between the rule of law and finding a judgment based on the merits as much as possible).

This is a student blog post and in no way represents the views of the Fordham International Law Journal.