VYTAUTO DIDŽIOJO UNIVERSITETAS TEISĖS FAKULTETAS

Virginija Maziliauskaitė

CAN A FORMER OWNER GET RESTITUTION OR COMPENSATION FOR ARTWORKS WHICH WERE SEIZED DURING WAR?

Magistro baigiamasis darbas

Teisės vientisųjų studijų programa, valstybinis kodas 60101S103

Vadovas (-ė)prof. Charles Szymanski

Apginta doc. dr. Julija Kiršienė

Kaunas, 2012 Table of contents

ABSTRACT IN LITHUANIAN ...... 3

ABSTRACT ...... 4

INTRODUCTION...... 5

1 THE PROTECTION OF ARTWORKS DURING WAR...... 7

2 EVOLUTION OF INTERNATIONAL LAW REGARDING THE RESTITUTION OF ARTWORKS ...... 10

3 STATES PRACTISE RESOLVING ART RESTITUTION DISPUTES...... 16

3.1. The United States courts practise resolving art restitution claims...... 16

3.1.1. The factual circumstances surrounding art restitution claims and their impact reclaiming art ...... 17

3.1.2. Difficulties in courts: bona fide purchaser, statute of limitations, conflict of laws ...... 20

3.1.3. Foreign Sovereign Immunities Act...... 24

3.1.4. Enforcement and immunity from seizure law ...... 27

3.2. “Trophies” of War, Compensatory restitution and Russian Federal Law on Cultural Valuables Displaced to the USSR as a Result of the Second World War and Located on the Territory of Russian Federation...... 28

3.3. Similarities and differences of art restitution in Western and Eastern Europe .. 30

4 COMPENSATION ISSUES ...... 34

CONCLUSIONS ...... 36

BIBLIOGRAPHY...... 38

2 ABSTRACT IN LITHUANIAN

AR GALI ANKSTESNIS SAVININKAS SUSIGRĄŽINTI AR GAUTI KOMPENSACIJĄ UŽ MENO KŪRINĮ NUSAVINTĄ KARO METU?

Santrauka

Nepaisant to, kad praėjo dešimtmečiai po Antrojo Pasaulinio karo, pasaulyje vis netyla diskusijos apie tuo laikotarpiu nusavinto turto grąžinimą teisėtiems savininkams. Paskutinysis dešimtmetis gali būti įvardijamas meno kūrinių restitucijos raidos laikotarpiu. Nuo to momento, kai šalys pasirašė Vašingtono Principus prasideda ne tik dingusių meno kūrinių paieška, bet ir teismuose tiek Jungtinėse Valstijose tiek Europoje pradedamos kelti bylos, dėl nusavintų meno kūrinių susigrąžinimo. Tarptautinė teisė saugo kultūros vertybes, tame tarpe ir meno kūrinius nuo neteisėto jų pasisavinimo, naikinimo ir žalojimo. Meno restitucija tarptautinėje teisėje atsiranda nuo devyniolikto amžiaus. Pasibaigus Napoleono karams šalys nugalėtojos pareikalavo grąžtinti iš jų pagrobtas meno vertybes. Šiuo laikotarpiu atsiranda vadinama specifinė restitucija, kai sugrąžinamas konkretus meno kūrinys. Po Pirmojo Pasaulinio karo tarptautinėje teisėje susiformuoja praktika vadinamosios restitucijos gera valia, t.y. kai sunaikintas, prarastas meno kūrinys pakeičiamas kaltininko turimu adekvačiu kūriniu. Tačiau pradžioje meno kūrinių restitucija buvo tik tarptautinio lygmens klausimas, t.y. grąžinamas buvo tik valstybei priklausęs turtas tarptautinių sutarčių, arba taikos sutarčių pagrindu. Privačios nuosavybės grąžinimo idėja atsirado po Antrojo Pasaulinio karo, tačiau iš esmės ją įgyvendinti sukliudė istoriniai sunkumai, tame tarpe ir Šaltasis karas. Kartu su interneto raida, bendruomenių išaugusiu aktyvumu meno kūrinių restitucija privatiems savininkas prasidėjo tik prieš daugiau kaip dešimt metų. Šio darbo tikslas yra ne tik nustatyti ar ankstesnis savininkas gali susigrąžinti meno kūrinius nusavintus karo metu, bet ir išanalizuoti tarptautinės teisės normas šiuo klausimu, bei atlikti išsamią analizę įvairių šalių praktikos sprendžiant pokario restitucijos klausimus. Šis darbas susideda iš dviejų dalių: tai bendrosios, aptariant tarptautinės teisės raidą meno restitucijos klausimu, ir specialiosios skirtos išanalizuoti ir aptarti įvairių šalų teisę ir teismų praktiką sprendžiant meno restitucijos problemas. Patraukliausia ir daugiausiai pažengusi šalis grąžinant karo metu prarastus meno kūrinius – Jungtinės Amerikos Valstijos. Nepaisant diskusijų ir nepasitentinimo tarptautinėje bendruomenėje, Rusija taip pat yra priėmusi įstatymą, kurio pagrindu galima susigrąžinti prarastą nuosavybę. Europa šiuo klausimu pasidalinusi į dvi dalis, tai iš dalies sąlygoja ekonominės priežastys, Rytų Europoje susigrąžinti nusavintą meno kūrinį vis dar pakankamai sudėtinga, tuo tarpu Vakarų Europos šalys grąžina turtą dažniausiai net ne teismo keliu.

3 ABSTRACT

CAN A FORMER OWNER GET RESTITUTION OR COMPENSATION FOR ARTWORKS WHICH WERE SEIZED DURING WAR?

The past ten years can be named as art restitution decade in international law. Since Washington Principles were signed in the huge amount of cases were brought to the courts of different countries. It is necessary to notice that even if decades past after Warl War II the prewar owners of seized, looted, thieft or otherwise lost property can get restitution or atleast compensation for the artworks. The international law protects cultural heritage and the artworks as the part of it from destruction and plunder during war. International law grants immunity for cultural property and for works of art as a part of it during war. It can not be seized, captured, destroyed. The private property is fully protected, and the works of art which belongs to the state has general or special protection in accordance with measures taken by the state. Although at the emergence of art restitution litigation in international law to get restitution could only states, private persons did not have that possibility. This work is categorized into two parts: the first one is general, includes review of international law regarding protection of artworks, and the review of evolution of international law practice resolving postwar art restitution disputes; the second part of the work is special, includes states practice resolving art restitution disputes of private property, and the review of compensatory issuses. The main purpose of the work is to analyze international law practice, states practice resolving art restitution disputes and to determine whether former owner can get restitution or compensation for the property which was seized during war. In work there will be determined whether the international law propects artworks from seizure during war; analyzed international law practice resolving postwar art restitution disputes; analyzed states practice resolving Holocaust era disputes (United States, Russia, Europe); determined difficulties bringing a lawsuit in courts of different states; analysed compensation problems of lost art; prodused a conclusion can a former owner get restitution or compensation for artworks which were seized during war. International society seeks to resolve postwar art restitution disputes. Dozens art restitution conferences are held in Europe and United States, there are many art recovery commitions which helps prewar owners to recover lost art. Lithuania are criticized in international level for its little attention over art restitution disputes.

4 INTRODUCTION

“Art defines our societies, outlines our aspirations, shows us ways of seeing the world that science never could. When a painting goes missing, we all lose a piece of our common heritage.” Simon Houpt1

The past ten years can be named as art restitution decade in international law. Since Washington Principles were signed in the huge amount of cases were brought to the courts of different countries. It is necessary to notice that even if decades past after Warl War II the prewar owners of seized, looted, thieft or otherwise lost property can get restitution or atleast compensation for the artworks. Although at the emergence of art restitution litigation in international law to get restitution could only states, private persons did not have that possibility. This work can be categorized into two parts: the first one is general, includes review of international law regarding protection of artworks, and the review of evolution of international law practice resolving postwar art restitution disputes; the second part of the work is special, includes states practice resolving art restitution disputes of private property, and the review of compensatory issuses. The purpose of the work The main purpose of the work is to analyze international law practice, states practice resolving art restitution disputes and to determine whether former owner can get restitution or compensation for the property which was seized during war. The objectives of the work In order to achieve the purpose of the works several objectives are set:  to determine whether the international law propects artworks from seizure during war;  to analyze international law practice resolving postwar art restitution disputes;  to analyze states practice resolving Holocaust era disputes (United States, Russia, Europe);  to determine difficulties bringing a lawsuit in courts of different states;  to analyse compensation problems of lost art;  to produse a conclusion can a former owner get restitution or compensation for artworks which were seized during war.

1 Simon Houpt, Museum of the Missing: A History of Art Theft, (2006). 5 The hypothesis The former owner can get restitution or compensation for the artworks which were seized during law. Methodology In writing thesis comparative, systemic, analysis and interpretive methods applied. The selection of the methods is conditioned on the purpose and objectives of the work. Comperative method is used to compare different practices of the states resolving disputes over art restitution claims. The method of analysis is applied to case practice. The systemic methods is used to determinate certain conclusions reviewing international law litigation. Interpretive and descriptive method will be used to certain terminology of this specific thesis. The relevance of the work Past ten years international society seeks to resolve postwar art restitution disputes. Dozens art restitution conferences are held in Europe and United States, there are many art recovery commitions which helps prewar owners to recover lost art. It is necessary to take attention for this type of discussion because it demonstrates the evolution of international law protecting private property rights. The novelty of the work Lithuania are criticized in international level for its little attention over art restitution disputes. It is important to understand nature of art restitution disputes and problems resolving claims in different states because this practice will be applied for future art restitution disputes. The practices of the states are very different so it is suggested to do systemic analysis before bringing claim to the court. Limits of the research The research of the work will be done in two levels. First there will be analysis of international norms. The second part of the work will include the systemic analysis of United States courts practice, analysis of Russia’s law of compensatory restitution and possibilities to reclaim lost property, the comparison of Europe state practice resolving Holocaust era disputes, and discussion over compensation isues.

6 1 THE PROTECTION OF ARTWORKS DURING WAR

At the beginning of this section it is nesesary to clearify that there are no special international law which was created to protect artworks during war. Artworks are the part of movable property which covers the term of cultural property2. The international law protects cultural heritage and the artworks as the part of it from destruction and plunder during war. During the history of humanity armed conflicts and wars were reason of massive destruction of cultural property in all over the world. Works of art as a part of cultural heritage were always in attention of massive plunder, because of their value and mobility. Through the centuries the artworks were just a „trophie“ of war. The idea to protect cultural values during war are not so old. The codification of antiplunder norms began on the second half of XIX century3. The first Hague Peace conference was held in 1899. The Conference of 1899 succeeded in adopting a Convention on land warfare and its Regulations. During the the Second International Peace Conference in 1907 the Convention and Regulations were revised. The provisions of the two Conventions on land warfare, like most of the substantive provisions of the Hague Conventions of 1899 and 1907, are considered as embodying rules of customary international law. As such they are also binding on states which are not formally parties to them.4 In this convention article 56 states that „[T]he property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property. All seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings.“5 The Convention prohibits confiscation and pillage of private property6. It is important to notice, that before First Worl War threre was customary international law which prohibited to seize works of art. The First Warld War demonstrated that regulations of Hague convention were not enough. On April 15, 1935 delegates of 21 countries signed the Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments, also known as Roerich pact. 7 Article I declares, „Historic monuments, museums, scientific, artistic, educational and cultural institutions shall be considered as neutral and as such respected and protected by belligerents“.8 The Treaty was signed

2 Convention for the Protection of Cultural Property in the Event of Armed Conflict. The Hague, 14 May 1954. 3 Wayne SandHoltz, Plunder, Restitution, and International Law, International Journal of Cultural Property (2010) at http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=7901876. Site visited on 20 March 2011. 4 Convention respecting the Laws and customs of War on Land . The Hague, 18 October 1907. 5 Ibit. 6 Ibit. Art. 46, 47. 7 See supra note 3: Wayne SandHoltz, p. 155-156. 8 The Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments, 26 August 1935. 7 by the United States and 20 Latin America states. The Roerich Pact involved only the certain number of state and none of them were the states which suffered the mass destruction of cultural heritage. Although it was the first international treaty specially devoted to protect cultural property during war. The massive destructions during the Second World War („WWII“) encouraged international community to create certain guidelines on protection of cultural property. These guidelines were adopted into Convention for the Protection of Cultural Property in the Event of Armed Conflict in 1954. This Convention imposed term of cultural property. The first article of the Convention states that there are three types of cultural property: movable or immovable property of great importance to the cultural heritage of every people, it includes and woks of art; buildings whose main and effective purpose is to preserve or exhibit the movable cultural property; centres containing a large amount of cultural property9. The protection is guaranteed for the transport exclusively engaged in the transfer of cultural property. The personnel engaged in the protection of cultural property has to be respected10. Any object or person which has protection under the Convention has to be marked with the distinctive emblem. The distinctive emblem takes the form of a shield, pointed below, per saltire blue and white (a shield consisting of a royal-blue square, one of the angles of which forms the point of the shield, and of a royal-blue triangle above the square, the space on either side being taken up by white triangle)11. The emblem is used alone to mark personnel engaged in the protection of cultural property and for the cultural property which is not under the special protection. Repeated tree times in a triangular formation emblem gives the special protection for cultural property. It is forbidden to use distinctive emblem for other purposes during armed conflict or war. In the Convention are specialized two types of protection: general and special. General protection applies for all objects which under the Convention are entitled as cultural property. For general protection Convention states that high contracting parties undertakes to prepare in time of peace for the safeguarding of cultural property the shelters, plans of transportation and other necessary measures. The special protection is granted only for a limited number of refuges intended to shelter movable cultural property of very great importance12. The shelters under special protection has to be situated at an adequate distance from any large industrial centre or from any important military

9 Convention for the Protection of Cultural Property in the Events of Armed Conflict. The Hague, 14 May 1954. 10 Ibit. 11 Ibit. Art. 16.1. 12 Ibit. Art. 8. 8 objective constituting a vulnerable point13. The special protection is granted only for objects which aren’t used for military purposes. The cultural property to which is granted special protection has to be registered in the “International Register of Cultural Property under Special protection”14. The Convention applies15:  in the events of declared war or any other armed conflict which may arise between two or more states, even if the state of war is not recognized by one or more of them;  to all cases of partial or total occupation of the territory of state, even if the said occupation meets with no armed resistance;  if one of the party in conflict did not ratified Convention, the party shall nevertheless remain bound by it. International law grants immunity for cultural property and for works of art as a part of it during war. It can not be seized, captured, destroyed. The private property is fully protected, and the works of art which belongs to the state has general or special protection in accordance with measures taken by the state.

13 For example, an aedrom, broadcasting station, ports, railways. 14 See supra note 8. Art. 8.6. 15 See supra note 8. Art. 18. 9 2 EVOLUTION OF INTERNATIONAL LAW REGARDING THE RESTITUTION OF ARTWORKS

Through the ages of history the main rule during war was “to the victor go the spoils”. The artistic and cultural patrimony of a defeated foe became the war trophies of the victor16. Art plunder was regular and accepted feature of European wars well into the seventeenth century. The past two centuries have seen the development of international legal rules that prohibit the seizure or destruction of cultural property. Although works of art are protected under international law there are important to underline the possibilities of artworks restitution. This section of the work will make brief analysis of emergence and evolution of international law regarding the restitution of artworks. In this section of work will be used terminology regarding artworks restitution:  the specific restitution means the return of identifiable items seized or removed in war to their prewar owners;  restitution in kind means replacement of cultural property lost or destroyed during war by objects of similar kind and value from the state responsible for the lost or destruction;  compensatory restitution means the seizure of cultural objects from state responsible for the lost or destruction as compensation for cultural losses17. There are three categories of artworks, based on prewar ownership: property belonging to private persons or organizations, property belonging to nonenemy states, and property belonging to enemy state. Different rules of international law regarding artworks restitution applies for these three types of artworks. The first step to emergence of artworks restitution practice in international law was made after Napaleonic wars. French armies with the special commissioners traveled across the Europe under the order to identify and to effect the careful removal of the masterpieces that are found.18 The masterpieces went to stock the Musee Napaleon (later the Louvre). In 1814 after the first defeat of Napaleon Austria, Prussia and other German states demanded the return of their art treasures. Although the made efforts the First Peace of Paris which was signed on 30 May 1814 was silent on question of plundered art because there was a fear about destabilization of the newly restored French monarchy.19

16 See supra note 2: Wayne SandHoltz, p. 148. 17 Ibit. 18 See supra note 2: Wayne SandHoltz, p. 150. 19 Ibit. 10 Napaleon’s return altered the discussion again. In the fall of 1815, after Waterloo, the allies resolved to repossess the stolen art without any diplomatic negotiations and to disregard any protestations.20 The Congress of Vienna affirmed that the works of art seized by France during the wars should be returned to their owners. France returned most of the looted art seized by Napaleon to the cities and states from which they were taken. For example the Germany states recovered 272 paintings of 299 seized, Vatican recovered 77 masterpieces out of 100 seized.21 The bombardment or burning of culturally significant sites during the First World War (WWI) aroused public protest in the press and led on propaganda campaigns on both sides. Hundred of churches and historic buildings along with the art treasures were destroyed during the course of WWI. During the peace negotiations in Paris national delegations agreed on the principle of specific restitution, which meant the return of identifiable objects taken from the territories occupied by central powers22. The second principle under debate was payments in kind in other words restitution in kind. Allied experts prepared list of materials that could be accepted as payment in kind, including works of art23. The Versailles settlement at the conclusion of WWI reinforced the international norm against the seizure and destruction of cultural property in war. The allies agreed that artistic and cultural objects removed during war be returned24. The restitution of specific items followed the practice initiated in 1815 but the peace treaties at the end of WWI also provided for limited restitution in kind25. Poland, Russia and the Ukraine signed a peace treaty in 192126(“Treaty of Riga”). The Article 11 part 1 section b of the Treaty of Riga states that Russia and Ukraine shall restore to Poland “libraries, archaeological collections and archives, collections of works of art, collections of any nature and objects of historical, national, artistic, archaeological, scientific and general educational value”. Although the Treaty was binging only on the parties, but it did contribute to the development of a customary rule that cultural values and the works of art as part of it cannot legitimately be retained by countries that have removed them by force but should, instead, be returned27. At the end of Second World War (“WWII”) the Nazis had amassed 10.7 millions stolen objects, including 600,000 artworks and hidden them in castles, bunkers and mine shafts across

20 Ibit. 21 See supra note 2: Wayne SandHoltz, p. 151-152. 22 See supra note 2: Wayne SandHoltz, p. 155-156. 23 Ibit. 24 Ibit. 25 Replacement of cultural treasures destroyed in the library of Louvain with comparable items from German collections. 26 Treaty of Peace between Poland, Russia and the Ukraine. The Riga, 18 March 1921. 27 See supra note 2: Wayne SandHoltz, p. 158. 11 Germany. An estimated 100,000 of those works are still missing28. A big part of these Nazi “trophies” were taken by the Soviet trophy brigades and transferred to the Soviet Union territory at the end of the WWII29. Already in 1942, the Allies were planning for the recovery and restitution of cultural properties stolen by the German during the WWII30. In 1943 was signed Inter-Allied Declaration Against Acts of Dispossession Committed in Territories Under Enemy Occupation or Control31. The part 4 of the declaration states that transfers of ownership of or interest in properties from occupied lands would be void. The declaration also applied to the stealing or forced purchase of works of art. The United Nations Monetary and Financial Conference took place from July 1 to July 22, 1944 in Bretton Woods, New Hampshire. The Final Act of this conference endorsed the measures taken by the Allies to recover and restore to lawful owners looted properties (and works of art as a part of it)32. After the end of the WWII Allies confronted a number of questions regarding the return of dislocated cultural properties to the countries of origin. Under the agreements works of art was returned to the countries from which they were stolen and countries under their law had to return these items for the lawful owners. Specific restitution moved ahead by general agreements33, though it was massive and complex task in practice34. But not all plundered property could be restituted, a part of it was destroyed during war. Countries like France, Belgium, Luxembourg, the Netherlands and other claimed that for the items which could not be located, they should be replaced by equivalent pieces from Germany collections (restitution in kind)35. After negotiations the Allied Control Council (“ACC”) agreed that restitution in kind would apply only to “goods of a unique character”36. In the end the four Allies failed to reach agreement on a general procedure for restitution in kind37. There was created the Directorate of Reparations, Deliveries, and Restitution (“DRDR”) which had to resolve the claims of restitution in kind on a case-by-case basis, but this mechanism went to nothing, the delegates of Soviet Union

28 Ralph Blumenthal, New efforts to recover Nazi plunder; but pessimism grows for recoveries, New York Times, Feb. 27, 2003, at http://www.nytimes.com/2003/02/27/arts/new-efforts-to-recover-nazi-plunder-but-pessimism-grows-for- recoveries.html?pagewanted=all&src=pm. Site visited on 20 March 2011. 29 See section 3.2. of the work. 30 See supra note 2: Wayne SandHoltz, p. 160. 31 Inter-Allied Declaration Against Acts of Dispossession Committed in Territories Under Enemy Occupation or Control. London, 5 January 1943. 32 Final Act of the United Nations Monetary and Financial Conference. Bretton Woods, New Hempshire, July 1 to July 22 1944. Part VI. 33 For example: artworks were returned to the Republic of Austria in 1958 by West Germany under the Transition Agreement with Western Allies of 1956. 34 See supra note 29. 35 Ibit. 36 See supra note 2: Wayne SandHoltz, p. 161. 37 Ibit. 12 declined to provide the list of cultural objects removed from Germany. An additional problem was that the Soviet had not been able to compile a comprehensive list of Soviet cultural objects lost or destroyed during the war38. Such a list was essential in order to identify the items that would be the subject to restitution by replacement with similar objects from Germany and its allies39. Despite all efforts of international community restitution issues was not resolved to the end. The period of cold war and the absence of goodwill in the government of Soviet Union postponed possibilities of art restitution for decades. In 1990, Konstantin Akinsha and Grigorii Kozlov, two Soviet art historians who had discovered information about trophy art hidden away in secret depositories in the Soviet Union, published an article about their findings. Because the article concerned information that had been kept secret from public during most of the cold war, it stirred up a debate that had been silent for decades40. Scholarly research and journalistic interest resulted in an abundance of publications, which in turn induced increasing popular awareness, about the extent and the brutality of the Nazi art spoliation41. Moreover, with the breakthrough of the Internet and online databases of stolen art, tracking down looted artwork took less patience, perseverance, and luck than ever42. The international community soon realized that worldwide explosion of Nazi era art disputes could only be adequately dealt with at the international level43. On 3 December 1998 the 44 governments participated in the Washington Conference on Holocaust-Era Assets and endorsed principles for dealing with Nazi looted art (“Washington Principles”). The delegates agreed on an eleven statement principles, that aimed to: 1) simplify the process of identification of looted art objects; 2) to find prewar owners of art; 3) to achieve a just and fair solution in claims. Principle I provides the generic obligation “[a]rt that had been confiscated by the Nazis and not subsequently restituted should be identified”44. Principles from II to IV prescribe more specific measures that had to be taken to overcome difficulties that heirs of art looting experience45. Although all efforts taken to track and identify looted art in numerous cases original owners will find it difficult to provide impervious and voluminous evidence of their title46. The Principles V and VI suggest to publicize looted art which was found and create a central

38 See section 3.2. of the work. 39 See supra note 35. 40 Lina M. Monten, Soviet World War II trophy art in present day Russia: the events, the law, and current controversies, 15 DePaul-LCA Journal of Art and Entertainment Law 37 (2004), p. 7. 41 Bert Demarsin, Let’s not talk about Terezin: restitution of Nazi era looted art and the tenuousness of public international law, 37 Brooklyn Journal of International Law 117 (2011), p. 6. 42 Ibit. 43 Ibit. 44 Washington Conference Principles on Nazi-Confiscated Art. Washington, 3 December 1998. 45 Ibit. 46 See supra note 40: Bert Demarsin, p. 6. 13 registry for such information47. The just and fair solution in claims of looted art under the Principle VIII has to be reached in accordance with facts and circumstances surrounding a specific case48. Washington Principles encourages signatory nations to develop national processes to implement the principles49. In response to the Washington Principles, numerous signatory states have taken new efforts or expanded existing initiatives to enhance the degree of transparency and disclosure regarding the provenance of the artwork in national museums50. Although the Washington Principles was nonbinding agreement and the states had moral obligations or guidelines than binding legal duties. In 1999 the Parliamentary Assembly of the Council of Europe passed Resolution 1205 calling for restitution of looted Jewish cultural property in Europe. The Resolution takes into consideration all possible causes of loss, such as forced sales or unofficial Aryanizations51. The claimant group under the Resolution are Jewish. The Resolution initiates states to identify and restitute looted cultural property, in cases when restitution is not possible the bodies which holds or did hold looted property has to pay a compensation at the full market value52. The signatory governments agreed to take measures providing legislative changes to facilitate restitution such as: removing statutory limitations, restrictions, providing immunity from actions for breach of duty on the part of those responsible for collections, waiving export controls53. The Resolution also suggest to relax anti-seizure statutes which protects from court actions works of art on loan, annulling later acquired titles54. Although Resolution had a very specific suggestions how to solve disputes on Jewish cultural property restitution it was nonbinding. In 2000 the Government of Lithuania offered to serve as a host for the conference on the implementation of the Washington Principles and Resolution 1205 of the Council of Europe. The final text of the Declaration encouraged all participating states to take all reasonable measures to implement the Washington Conference on Nazi-Confiscated Art as well as Resolution 120555 and to take the measures necessary, within the context of their own laws, to assist in the identification and restitution56. This Declaration did not brought any changes to existing legal rules and norms. On June 26, 2009, under the auspices of the European Union, the four-day Prague Holocaust Era Assets Conference set about it proceedings. On June 30, 2009, upon the invitation of the Czech government, the representatives of forty-six states met in Terezin to adopt the conclusive

47 See supra note 44: Washington Principles. 48 Ibit. 49 Ibit. 50 See supra note 40: Bert Demarsin, p. 7. 51 Resolution 1205 of the Council of Europe, 5 November 1999. 52 Ibit, Art. 12. 53 Ibit, Art. 13. 54 Ibit, Art. 15. 55 Vilnius Forum Declaration. Vilnius, 5 October 2000. Art. 1. 56 Ibit, Art. 6. 14 declaration57. The document solemnly reaffirmed the signatories support of the Washington Principles and encouraged all parties to apply them, yet did not actually further the cause of restitution58. The Terezin Declaration did not created new ideas with regard to the restitution of Nazi-confiscated cultural property. Nevertheless all discussed principles and declarations are nonbinding they often trigger pressure for compliance among actors involved, give rise to the outcome of legal proceedings and accordingly give courts a push in a certain direction. The post-war treaties and agreements created international law practice regarding the restitution of artworks. Treaties after Napaleonic wars and WWI created practice of special restitution, after WWI and WWII emerge restitution in kind. As a brief analysis of this section shows post-war agreements regulated only the restitution in state-by-state level. Restitution of private property emerge only after WWII and for historical reasons the disputes were not resolved in time. The next sections of the work will analyse states practice resolving restitution of artworks to the pre-war owners.

57 See supra note 40: Bert Demarsin, p. 9. 58 Ibit. 15 3 STATES PRACTISE RESOLVING ART RESTITUTION DISPUTES

3.1. The United States courts practise resolving art restitution claims

In response to sudden upsurge in Holocaust-era related art disputes, several members of the U.S. Congress passed a number Holocaust related bills59. On February 2, 1998, President Clinton signed in the Holocaust Victims Redress Act into law. This act demonstrates the U.S.’s commitment to returning stolen art to its rightful owners. The act is designed to restore items and money seized from Nazi Germany to survivors of the holocaust60. Title II of the act talks about works of art section 202 states, that “[T]he sense of the Congress that consistent with 1907 Hague Convention, all governments should undertake good faith efforts to facilitate the return of private and public property, such as works of art, to the rightful owners in cases where assets were confiscated from claimant during period of Nazi rule and there is reasonable proof that the claimant is the rightful owner”. On June 23, 1998, President Clinton signed in the United States Holocaust Assets Commission Act into law which created the Presidential Advisory Commission on Holocaust Assets in the United States. The commission focused on a broad panoply of assets, such as money, gems, jewels, precious metals, bank accounts, insurance policies, real estate, works of art, books, manuscripts, and religious objects that came into the possession or control of the Federal Government at any time after January 30, 193361. In 1998 also was signed the Nazi War Crimes Disclosure Act which established the Nazi War Criminal Records Interagency Working Group62. Its mission was to locate, identify, inventory, recommend for declassification, and make available to the public all classified Nazi criminal records of the United States63. All measures taken by United States gave for it a reputation “as the friendliest place on earth for people looking to reclaim stolen art”64. Legislative efforts are important for understanding attention of United States government taken to Holocaust era disputes. The United States courts felt an impact of these efforts since 1998 courts created practice in artworks restitution cases. This section of work will analyse United States courts practice in Holocaust era art restitution claims.

59 See supra note 40: Bert Demarsin, p. 10. 60 Holocaust Victims Redress Act, Pub. L. No. 105-158, 1998. 61 U.S. Holocaust Assets Commission Act of 1998, Pub. L. No. 105-186, 112 Stat. 611, 1998. Sec. 3. 62 Nazi War Crimes Disclosure Act, Pub. L. No. 105-246, 112 Stat. 1859, 1998. Sec. 2. 63 See supra note 62: Nazi War Crimes Disclosure Act, sec. 3. 64 Randy Dotinga, US Lawsuits Pursue Lost Art, Christian Science Monitor, July 5, 2005, at http://www.csmonitor.com/2005/0705/p03s01-alar.html. Site visited on 20 March 2011. 16 3.1.1. The factual circumstances surrounding art restitution claims and their impact reclaiming art

Washington Principles states that “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“65. Although the facts and circumstances in cases are not the same. In this section of the works Holocaust era art restitution cases will be categorized into two general groups according to the facts surrounding claims: 1) Based on Nazi confiscation (theft, looting, forcible physical possession); 2) Arising from coerced sales66. The category of coerced sales can be divided into two subcategories. Under the suggestion of Andrew Adler the first subcategory involves sales that can be said to have been made as a proximate result of Nazi persecution67. The second subcategory involves private sales that were made as a direct (but not proximate) result of Nazi persecution68. The most archetypal case based on Nazi confiscations is Menzel v. List69. The Menzels fled Brussels in 1940, leaving all of their possessions behind, including a Marc Chagall painting. They returned 6 years later and found that “the painting was seized by the ‘Einsatzstab der Dienststellen des Reichsleiters Rosenberg’ on or about March 31, 1941, and a certification or receipt left, indicating that the painting, among other works of art, had been taken into ‘safekeeping’”70. Nazi confiscation was also responsible for the dispute between Austria and Maria Altmann71. The dispute arose over five Gustav Klimt paintings. The Maria V. Altmann was born in Austria in 1916, and escaped the country after it was annexed by Nazi Germany in 1938. She settled in California in 1942 and became an American citizen in 1945. She is a niece, and the sole surviving named heir, of Ferdinand Bloch-Bauer, who died in Zurich, Switzerland, on November 13, 1945. Prior to 1938 Ferdinand, then a wealthy sugar magnate, maintained his principal residence in Vienna, Austria, where the six Klimt paintings and other valuable works of art were housed. On March 12, 1938, in what became known as the “Anschluss,” the Nazis invaded and claimed to

65 See supra note 44: Washington Principles, p. 8. 66 Andrew Adler, Expanding the Scope of Museums Ethical Guidelines With Respect to Nazi-Looted Art: Incorporating Restitution Claims Based on Private Sales Made as a Direct Result of Persecution, International Journal of Cultural Property (2007) at http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=1046288. Site visited on 20 March 2011. P. 57-58. 67 Ibit. These sales can be conceptualized as gun-to-the-head-type transactions, where the persecution occurred contemporaneously with or immediately preceding the the sale. 68 See supra note 66: Andrew Adler, p. 58. These sales are direct consequence of persecution in the sense that, despite any intervening lapse of time, the effect of particular acts of Nazi persecution acted as the undeniable and predominant cause of the sale. 69 Menzel v. List 267 N.Y.S.2d 804, 806 (1966), modified, 279 N.Y.S.2d 608 (1967), rev’d, 24 N.Y.2d 91 (1969). 70 Menzel v. List, 267 N.Y.S.2d at 806, commented in the article of Andrew Adler, see supra note 66 p. 59. 71 Republic of Austria v. Altmann, (03-13) 541 U.S. 677 (2004). 17 annex Austria. Ferdinand, who was Jewish and had supported efforts to resist annexation, fled the country ahead of the Nazis, ultimately settling in Zurich. In his absence, the Nazis “Aryanized” the sugar company he had directed, took over his Vienna home, and divided up his artworks, which included the Klimts, many other valuable paintings, and a 400-piece porcelain collection. A Nazi lawyer, Dr. Erich Führer, took possession of the six Klimts. He sold two to the Gallery in 1941 and a third in 1943, kept one for himself, and sold another to the Museum of the City of Vienna. The immediate fate of the sixth is not known72. In 2004 the Utah Museum of Fine Arts returned the François Boucher “Les Jeunes Amoureux“ to the heirs of Andre Jean Seligmann73. Mr. Seligmann was a Jewish art dealer who left Germany during the war and settled in United States74. After Mr. Seligmann fled the country, Hitler‘s aides, on the instructions of Herman Goering, confiscated his gallery with the Boucher painting in it75. The courts in most cases are favourable for the heirs and survivors who tries to reclaim confiscated art. In the disputes which arises from coersed private sales the result not always is in favor for the plaintiffs. As it was mentioned before coerced sales can be divided into sales which were made as a proximate result of persecution and which were made as a direct result of persecution. As an example of sales which were made as a proximate result of persecution can be a claim which occurred in 1997. The Belgium brought a claim to recover works by Monet which were held at the Metropolitan Museum of Art76. Reichsmarschall H. Goering acquired these works from art collector E. Renders after the Nazi occupation “[i]n 1940, Goering so coveted the 20 Netherlandish paintings in Renders’ collection that during negotiations, he arranged to have Nazi currency officials block Renders from selling them to anyone else. And when negotiations faltered, he made an unsubtle threat to Renders, “then I should be compelled to withdraw my offer and then things would go their normal way, without being able to do anything to impede it”77. In 2006 the Dutch government agreed to return numerous works held in 17 national museums to the heirs of Jacques Goudstikker who “died abroad ship while escaping Holland soon after the German invasion of Holland in 1940 (…) Goering visited the gallery within days of Goudstikker’s flight, and ultimately acquired the entire collection for a fraction of its value in a coerced transaction arranged by his dealer, a German named Alois Mield”78. In 2006 the Holocaust Claims Processing Office announced that a painting of Emile Lecompte- Vernet will be returned to the estate of Dr. Max Stern. Dr. Stern was the owner of an art gallery in

72 Ibit. 73 Michael J. Bazyler and Kearston G. Everitt, Holocaust Restitution Litigation in the United States: An Update, ACLU International Civil Liberties Report, 10 December 2004 at http://www.aclu.org/iclr/bazyler.pdf . Site visited on 20 March 2011. P.12. 74 Ibit. 75 Ibit. 76 See supra note 66: Andrew Adler, p. 60. 77 Ibit. Andrew Adler cites Robinson, Walter V., and Maureen Goggin, Stolen Art Claims Shake N.Y. Museum, Boston Globe, 24 July, 1997. 78 Ibit . Anrew Adler cites Stephen W. Clark, World War II Restitution Cases, Legal Issues in Museums Administration, edited by American Law Institute and Bar Association, 543-561, 2006. 18 Dusseldorf, Germany before a war. In 1935 he became legally prohibited from buying or selling art in Germany79. In 1937 the Reich Chamber of Culture ordered Dr. Stern to “immediately sell his gallery’s remaining inventory through a Nazi-approved RKK dealer. The Gestapo enforced this order and on November 13, 1937, Dr. Stern liquidated the gallery’s remaining stock – more than 200 paintings – at a fraction of their market value at Lempertz auction in Cologne”80. The common element in these coerced transactions is the overwhelming presence of persecution immediately surrounding the transfer of the art81. As an examples shows in disputes which arises from coerced sales as a proximate result of persecution in most cases an art is returned to the lawful owners. When the sales are made as a direct result of persecution the Nazis did not participate in the circumstances surrounding the sale, in these cases there were no confiscations, lootings or theft. At the first look seems that owners sold their property by their free will and in these circumstances to win the case are not easy. In this type of cases owners were forced to sell their property to get an opportunity to survive – escape from regime, from hunger, to leave their country. In most cases the sales were made for very low price because at this time the market were fulfilled by an art. So even there was no obvious participation of Nazis the sales were made as a direct result of that time persecutions. One of the cases of sales made as a direct result of persecution involved Martha Nathan and Toledo Museum of Art and their claims of ownership over a Paul Gauguin painting Street Scene in Tahiti82. Martha Nathan was the wife of a prominent art collector, Hugo Nathan. She inherited the Painting and numerous other artworks upon her husband's death in 1922. In his Will, Hugo Nathan indicated his intention that Martha Nathan would someday sell some of these artworks to meet her needs. In February 1937, Martha Nathan left Germany in order to escape Nazi persecution. She moved to Paris, France where she obtained French citizenship. Around May 1938, she returned to Germany to sell her house. At that time, the Nazi government required her to turn over six paintings remaining in her home to the Staedel Art Institute. The paintings she turned over did not include the painting of Paul Gauguin which she had moved sometime earlier along with other artwork to Basel, Switzerland. Martha Nathan moved permanently to Switzerland around 1939. In December 1938, a year and a half after living in France and before the German occupation of France, Martha Nathan sold some of her artwork, including the painting of Paul Gauguin then located in Basel, Switzerland. She sold the Painting to three prominent European art dealers, at least two of whom had known her for many years. In short, this sale occurred outside Germany by and between private individuals who were familiar with each other. The Painting was not confiscated or looted by the Nazis; the sale was not at the direction of, nor did the proceeds benefit, the Nazi regime. Several months later, in May 1939, Toledo Museum of Art purchased the Painting from Wildenstein & Co.

79 Holocaust Claims Processing Office, Painting Lost During Forced Sale Returned to its Rightful Owners, News release, 19 October 2006 at http://banking.state.ny.us/pr061019.htm . Site visited on 20 March 2011. 80 Ibit. 81 See supra note 66: Andrew Adler, p. 60. 82 Toledo Museum of Art v. Ullin, No. 3:06 CV 7031, 477 F. Supp. 2d 802 (N.D. Ohio 8 Dec., 2006). 19 for U.S. $25,000. The museum has had the Painting on display in Ohio and internationally since 1939 with Martha Nathan noted as prior owner83. The court granted the Toledo Museum of Art motion to dismiss and dismissed claims on the statute of limitation grounds84. The case Shoeps v. The Andrew Lloyd Webber Foundation involved issues over ownership of a Pablo Picasso painting85. Julius Shoeps filed a complaint in federal court in 2006, seeking to enjoin a Christie’s auction. The complaint was ultimately dismissed for lack of subject matter jurisdiction, then Schoeps refilled suit in New York seeking restitution86. The Julius Schoeps is an heir of Paul von Mendelssohn-Bartholdy. The Mendelssohn was a wealthy Jewish banker and had impressive art collection. Between 1933 and till his death from heart attack in 1935 Mendelssohn was subject of Nazi persecution. In connection with Aryanization he suffered significant banking losses, he suffered a precipitous decline in net worth to less than one tenth of what it was before 1933, he lost prestigious positions in business and so on87. The Mendelssohn bequeathed his art collection to his wife Elsa and she inherited the Picasso upon his death in 1935. Elsa sold the painting to the Berlin art dealer Justin Thannhauser in 193588. Shoeps alleged that he was the true owner of the Picasso because it was lost “in a forsed sale as a proximate and intended consequence of Nazi persecution”89. Although the Cristie’s auction argued that there was no evidence of theft or suspicion that Elsa was coerced or given an unfair price for the painting90. Washington Principles encourages states to resolve Holocaust era disputes according to the specific facts of each case. In most cases when the works of art were confiscated or the owners were forced to sell their property to Nazi regime art is restituted to the lawful owners. Although when the sales were made when Nazis did not participate in the circumstances surrounding the sale (but all circumstances shows that the sales were made as a direct result of persecution) to succeed the restitution are difficult.

3.1.2. Difficulties in courts: bona fide purchaser, statute of limitations, conflict of laws

When the claim for lost property are brought to the court after decades past an injury the plaintiffs has to confront with difficulties in courts. In this section there will be discussed three mine types of difficulties: bona fide purchaser, statute of limitations and conflicts of law.

83 Ibit. 84 Ibit. 85 Shoeps v. Andrew Lloyd Webber Art Foundation, No. 06 CV 12934 (S.D.N.Y. 3 Nov. 2006). 86 See supra note 66: Andrew Adler, p. 64. 87 Ibit. 88 Ibit. 89 Ibit. Andrew Adler comments the complaint of Shoeps v. Andrew Lloyd Webber Art Foundation. 90 Ibit. 20 A bona fide purchaser, also called an innocent buyer, is a buyer who does not know of any defect in the title of the item he is buying91. Although a buyer are not innocent if he should known of the defect in title. For example in the circumstances of the sales were suspicious, the price was too low, if the nature of the artwork itself would warrant extra vigilance92. In the United States and other common law countries a thief can not pass title, even there have been several subsequent buyers and each of those buyers was unaware that was buying stolen property93. Contrary to the common law countries in most civil law countries a thief can pass title to a good faith purchaser if the owner does not find his stolen property or the thief within few years94 In the case Sotheby’s Inc. v. Shene95 dispute arose over the book of drawings which was created in Germany in the sixteenth century. From 1858 to 1945 the book was stored in the collection of the Staatsgalerie Stuttgart, Germany. The book was stamped on each page with institutions insignia. After WWII gallery discovered that the book was missing. In 2004 Shene gave the book to Sotheby’s to sell96. During the investigation of book’s provenance Sotheby’s discovered that book was stolen by John Doty a United States Army Captain during WWII. Shene was a book collector he purchased the book in private auction held by Sheldon Margulis, a book dealer in St. Louis, who acquired the book from Captain Doty family. The court adhere to the proposition that “ [a] good-faith purchaser of a stolen object is not considered to have valid title to the object, because a purchaser cannot acquire good title from a thief.”97 Even if an individual purchases an object without knowing it was stolen, the title to the object remains with true owner. The New York law places “the burden of investigating the provenance” of an object on its purchaser, and there for requires the possessor of an object to prove in a replevin action that the object was not stolen98. Shene had to notice that the book was stamped with galleries insignia. The court also stated that “New York law gives greater protection to an object’s true owner than to its good-faith purchaser, because doing otherwise would encourage illicit trafficking of stolen art”99. The period of time during which the original owner can claim the stolen object varies by jurisdiction, but it is generally just a few years100. The main question is when the statute of limitations begins to run. The majority rule in United States is the discovery rule, which developed from medical malpractice doctrine. Under the discovery rule, the statute of limitations begins to run

91 Michelle J. Turner, The Innocent Buyer of Art Looted During World War II, Journal of Transnational Law, Vol. 32, Nr. 5, November 1999. P. 11. 92 Ibit. 93 Ibit. 94 Ibit. 95 Sotheby‘s Inc. v. Shene, 2009 U.S. Dist. LEXIS 23596 (S.D.N.Y. 23 March, 2009), 2009 U.S. Dist. LEXIS 30714 (S.D.N.Y. 9 April, 2009). 96 Ibit. 97 Ibit. 98 Ibit. 99 Ibit. 100 See supra note 91: Michelle J. Turner, p. 12. 21 on the date when the owner discovers or should have discovered the identity of the possessor or the whereabouts of the property. Once the owner knows where the artwork is he must quickly bring legal claim or the claim will be barred101. This rule attempts to reward diligent owners and to punish those who do not act quickly to discover their stolen property. The example case Toledo Museum of Art v. Ullin discussed in section 3.1.1. of the work. The New York law applies a demand and refusal rule. As against a good faith purchaser, the claim accrues and statute of limitations begins to run when a demand by true owner for the return of the property has been refused102. In the case Grosz v. Museum of Modern Art103 the heirs of the German artist Georg Grosz brought case in Federal Court in New York to recover three Grosz paintings from the Museum of Modern Art (MoMA). Grosz emigrated to America in 1933 only weeks before Hitler was named chancellor. The artist left these works among others with his Jewish dealer in Berlin, Alfred Flechtheim, who left Germany for Paris and London within the year. The lawsuit says that following Flechtheim's death in 1937, Grosz's works were sold without the artist's knowledge and each took a different path through the murky art marketplace before, during and after World War II, with all three being acquired by the museum by the early 1950s104. Grosz's heirs and MoMA had discussions, correspondence, and exchanged information for several years; the heirs filed a lawsuit in the U.S. District Court for the District of Columbia just a few days shy of three years after MoMA sent a letter saying that the Board of Trustees had voted not to relinquish the art105. According to the heirs, the museum did not “refuse” their demand until April 12, 2006, the date that MoMA’s director rejected the heirs’ demand in a letter. The district court, however, found that letters from MoMA to the heirs, coupled with the museum’s retention of the paintings, constituted a refusal in 2003, even without an express statement by the museum. The case was, therefore, time-barred. The heirs appealed to the Second Circuit, arguing that the district court misconstrued the settlement negotiations between the parties. Alternatively, the heirs argued that MoMA should be equitably estopped from using the statute of limitations as a defense because the heirs relied on the negotiations with MoMA in choosing not to file suit. The Second Circuit rejected the heirs’ claims, both affirming the lower court and holding equitable estoppel to be inapplicable, since “[t]he mere existence of settlement negotiations is insufficient to justify an estoppel claim.”106

101 Ibit. 102 Herrick Feinstein LLP, Outline of Legal Principles Governing Holocaust-Looted Art Cases, 2011 at http://www.commartrecovery.org/sites/default/files/OutlineMaterialsAppraiserConference.pdf . Site visited 20 March 2012. P. 3. 103 Grosz v. Museum of Modern Art, 722 F. Supp. 2d 473 (S.D.N.Y. 2010), aff’d, 403 Fed. Appx. 575 (2d Cir. 2010). 104 Grosz Heirs v. Museum of Modern Art, at http://www.commartrecovery.org/cases/grosz-heirs-v-museum-modern-art (2010). Site visited 20 March 2011. 105 Ibit. 106 Yeal Weitz and Waffiyah Mian, Holocaust Art Restitution Litigation in 2010, The Art Law Newsletter of Herrick, Feinstein LLP, Vol. 8, Winter 2011, at 22 In the case Bakalar v. Vavra107 addressed conflict of law issues. This case involves a dispute over the ownership of a drawing by Egon Schiele (the “Drawing”) between plaintiff David Bakalar, the current possessor of the Drawing, and defendants Milos Vavra and Leon Fischer, heirs to the estate of Franz Friedrich Grunbaum (“Grunbaum”). Although the Drawing was untitled by the artist, one of the descriptive titles by which it is known is “Seated Woman with Bent Left Leg (Torso).”108 The Second Circuit determined that, based on an interest analysis, New York law applied, even though title purportedly passed under Swiss law while disputed artwork was in Switzerland. The court found that the compelling interest of the State New York in making sure that it did not become a haven for stolen property overrode any interest Switzerland might have had in connection with a transaction where the purchased property left the country almost immediately109. In Shoeps v. Museum of Modern Art110 the dispute centered around two Picasso paintings that were in possession of the Museum of Modern Art and the Solomon R. Guggenheim Foundation. The claimants alleged that the paintings were transferred by their ancestor as a direct result of Nazi duress, and that the subsequent transfer of one of the paintings, which was being held in Switzerland at the time of transfer, should be governed by New York law since New York was the location of ultimate purchaser. To determine choice of law in contract disputes New York courts apply an interesting analysis which includes the following five factors :  the place of contracting;  the place of negotiation;  the place of performance;  the location of the subject matter of the contract;  the domicile or place of business of the contracting parties. Under this analysis court decided that New York law should apply. The court found that the New York had more significant relationship to the matter than Switzerland did111. As the analysis shows plaintiffs has to be careful bringing claim in court. The different time periods of statute of limitation applies in different states, and there can arise problems

http://www.herrick.com/siteFiles/Publications/91EA0EA1B2A27866A62AFCFA39BF0398.pdf . Site visited 5 March 2012. P. 3. 107 Bakalar v. Vavra, 619 F.3d 136 (2d Cir. 2010), motion denied, 2011 U.S. Dist. LEXIS 4766 (S.D.N.Y. 14 Jan., 2011), motion to strike denied, 2011 U.S. Dist. LEXIS 91851 (S.D.N.Y. 17 Aug., 2011). 108 Ibit. 109 See supra note 102: Outline of Legal Principles, p. 4. 110 Schoeps v. Museum of Modern Art, 2009 U.S. Dist. LEXIS 5647 (S.D.N.Y. 2009). 111 Ibit. Also see Yael Weitz, Holocaust Art Restitution Litigation in 2009, The Art Law Newsletter of Harrick Feinstein LLP, Vol. 5, Winter 2010 at http://www.herrick.com/siteFiles/LegalServices/69A061F7F04725969DDE70549DE61746.pdf . Site visited 5 May 2011.

23 choosing which law to apply. It is useful to do some investigation of states practices resolving art restitution cases to the better preparation for the claim.

3.1.3. Foreign Sovereign Immunities Act

The Foreign Sovereign Immunities Act (“FSIA”) provides that “a foreign state shall be immune from jurisdiction of the courts of the United States and of the States except as provided in sections 1605-1607 of this chapter (…)”112. The FSIA provides that a foreign state shall not be immune from jurisdiction of courts of the United States or the states in any case in which: 1) Explicit or implicit waiver of immunity by the foreign state113; 2) Commercial activity carried on in the United States or an act performed in the United States in connection with a commercial activity elsewhere, or an act in connection with a commercial activity of a foreign state elsewhere that causes a direct effect in the United States114; 3) Property taken in violation of international law at issue115; 4) Rights in property in the United States acquired by succession or gift or rights in immovable property situated in the United States are at issue116; 5) Money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortuous act or omission of foreign state117; 6) Action brought to enforce an agreement made by the foreign state with or for the benefit of a private party to submit to arbitration118; 7) Money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such act119; 8) A suit in admiralty is brought to enforce a maritime lien against a vessel or cargo of the foreign state which maritime lien is based upon commercial activity of the foreign state120. The expropriation exception is most utilized in restitution cases. This exception provides that, where property has been expropriated in violation of international law, and that property, or

112 Foreign Sovereign Immunities Act of 1976, Pub. L. 94-583, 90 Stat. 2891, 28 U.S.C. Sec. 1604. 113 Ibit. Sec. 1605 (a) (1). 114 Ibit. Sec. 1605 (a) (2). 115 Ibit. Sec. 1605 (a) (3). 116 Ibit. Sec. 1605 (a) (4). 117 Ibit. Sec. 1605 (a) (5). 118 Ibit. Sec. 1605 (a) (6). 119 Ibit. Sec. 1605 (a) (7). 120 Ibit. Sec. 1605 (b). 24 any property exchanged for it, is present in the United States in connection with a commercial activity carried on in the United States by the foreign state, that state will not be immune from suit where the rights to such property are at issue. The first major restitution case was Republic of Austria v. Altmann121. In this case Supreme Court determined that the FSIA’s expropriation exception (first enacted when FSIA was adopted in 1976) was retroactive in its application. This meant that the exception applied to conduct by foreign sovereign before 1976, thereby opening the door to actions in the United States against foreign governments for the recovery of Nazi looted artworks. In Cassirer v. Kingdom of Spain122 the court considered for the first time whether the expropriation exception should apply where the foreign state involved in the litigation was not the entity that expropriated the property in violation of international law. The case involved a dispute over the ownership of painting that plaintiff alleged was taken from his grandmother by the Nazis in violation of international law in 1939. After series of transfers, some documented and other not, the painting was sold to Baron Hans-Heinrich Thussen-Bornemisza, whose art collection was purchased by Spain in 1993123. The court established that the expropriation exception should apply124. Despite the fact that Germany, and not Spain, was responsible for the looting at issue, the court held that the expropriation exception applied to the transfer125. In Freud v. Republic of France126 Holocaust survivors and their heirs sued for compensation for the expropriation of their property that occurred during their deportation from France to Nazi concentration camps127. The court had to determine whether the expropriation exception should apply. The court determined that neither of the agencies fell under the scope of the exception because either they were not engaged in commercial activity in the United States or the expropriated property was not present in the United States128. Westfield v. Federal Republic of Germany129involved the alleged looting of an art and tapestry collection by Nazi regime. The plaintiff argued that Germany should be considered a successor to the Nazi government, and therefore should be held liable for the theft130. The dispute was about whether the seizure of the art collection constituted “commercial activity”. The plaintiff

121 See supra note 71: Republic of Austria v. Altmann. 122 Cassirer v. Kingdom of Spain, 580 F.3d 1048 (9th Cir. 2009), on reh’g, 616 F.3d 1019 (9th Cir. 2010), cert. denied, 2011 U.S. LEXIS 4928 (U.S. 27 June 2011). 123 Yael Weitz, Holocaust Art Restitution Litigation in 2009, The Art Law Newsletter of Harrick Feinstein LLP, Vol. 5, Winter 2010 at http://www.herrick.com/siteFiles/LegalServices/69A061F7F04725969DDE70549DE61746.pdf . Site visited 5 May 2011. 124 See supra note 122: Cassirer v. Kingdom of Spain. 125 Ibit. 126 Freud v. Republic of France, 2008 U.S. Dist. LEXIS 105432 (S.D.N.Y. 2008). 127 Ibit. 128 Ibit. 129 Westfield v. Federal Republic of Germany, 2009 U.S. Dist. LEXIS 65133 (M.D. Tenn. 2009). 130 Ibit. 25 argued that Germany’s act of converting the artworks was done in furtherance of the “commercial activity” of selling the art on the private art market, and that this act had “direct effect in the United States” because the owner had intended to transfer the art to the United States131. The court rejected the claim stating that no commercial activity was involved and that the unique to a sovereign power cannot be considered a commercial act132. In Agudas Chasidei Chabad v. Russian Federation133 the Chabad organization brought a claim against the Russian Federation, its Ministry of Culture and Mass Communication and the State Library and State Military Archive for the return of thousands of religious books, manuscripts, and other materials that were seized from Chabad by Soviet Union134. The court held that Chabad was not required to exhaust the Russian domestic remedies before bringing the action in the United States, also court determined that materials were seized in violation of international law, and that the States agencies had engaged in commercial activity with United States. Although Russia announced that it would no longer participate in lawsuit. After this the district court issued an opinion ordering a default judgment against Russia, to surrender the complete collection of materials. When Russia did not, the plaintiff filed two motions: to enforce the judgment and permit attachment and motion seeking an imposition of sanctions against the defendants. In 26 July 2011 the court granted plaintiffs motion135. De Csepel v. Republic of Hungary136 involves the claims by the heirs of Baron Mor Lipot Herzog against the Republic of Hungary, three Hungarian museums and a Hungarian university for the recovery of paintings and other works. In this case the court determined that, even though Hungary did not enact formal laws taking away the citizenship of Jews during the Nazi era, Hungary had the subjected Jews to measures that stripped them of the rights that one normally accords to citizens. Even though the plaintiffs were Hungarian citizens, Hungary could commit violations of international law under expropriations exception of the FSIA137. Although there are no practice of art restitution claims which were brought to United States by foreign plaintiffs, the FSIA does grant jurisdiction for United States courts to hear claims by foreign plaintiffs against foreign governments. In the case Verlinden B.V. v. Central Bank of Nigeria138 the court held that FSIA Sec.1330(a) allows a foreign plaintiff to sue a foreign sovereign in federal court provided the substantive requirements of the FSIA are satisfied. The FSIA contains

131 Ibit. 132 Ibit. 133 Agudas Chasidei Chabad v. Russian Federation, 729 F. Supp. 2d 141 (D.D.C. 2010), motion granted, motion denied by 2011 U.S. Dist. LEXIS 80971 (D.D.C. 26 July 2011). 134 Ibit. 135 Ibit. Also see supra note 102: Outline of Legal Principles, p. 6. 136 De Csepel v. Republic of Hungary, 2011 U.S. Dist. LEXIS 98573 (D.D.C. 1 Sept. 2011). 137 Ibit. 138 Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 489 (1983). 26 no indication of any limitation based on the plaintiff's citizenship. And, when considered as a whole, the legislative history reveals an intent not to limit jurisdiction under the FSIA to actions brought by American citizens139. As shows analyse of the cases above United States law gives the power of private individuals to sue foreign sovereigns in United States courts over claims for artworks.

3.1.4. Enforcement and immunity from seizure law

The section before of the work demonstrated possibilities for private individuals to sue foreign sovereigns. Although the courts decision in favor to the plaintiffs may not bring the result expected. To enforce courts decision could be impossible because of protection of the Immunity From Seizure Act (“IFSA”)140. The main purpose of the IFSA is to “permit organizations and institutions engaged in nonprofit activities to import, on a temporary basis, works of art and objects of cultural significance from foreign countries for exhibit and display, without the risk of the seizure or attachment of the said objects by judicial process”141. Under the IFSA, a foreign lender makes a request for IFSA immunity to the State Department. If immunity is granted, a foreign sovereign or museum making a loan will not have to fear seizure or attachment of the said objects by judicial process142. The Malewicz143 involved number of paintings by the artist Kazimir Malevich. The Stedelijk Museum owned and operated by the City of Amsterdam, a political subdivision of the Dutch government, loaned a number of mentioned Kazimir Malevich paintings to two American museums as a part of temporary exhibition. The borrowing museums secured the necessary certifications from U.S. Department of State to ensure that the artworks would be immune from any court ordered seizure144. The court ruled that the artworks presence in the United States was nevertheless a sufficient basis for jurisdiction145. Although the artworks could not be seized to enforce courts decision but the provenance of art, which can be considered as a result of IFSA, gave the possibility to the plaintiffs to bring the claim in court.

139 Ibit. 140 Immunity From Seizure Act, 22 U.S.C. 2459. 141 Ibit. 142 Charlene A. Caprio, Artwork, Cultural Heritage Property, and Foreign Sovereign Immunities Act, International Journal of Cultural Property (2006) at http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=687368 . Site visited 20 March 2011. P. 285. 143 Malewicz v. City of Amsterdam, 362 F. Supp. 2d 298 (D.D.C. 2005), motion granted, motion dismissed by 2006 U.S. App. LEXIS 615 (D.C. Cir. 10 Jan. 2006), motion granted 517 F. Supp. 2d 322 (D.D.C. 2007), motion granted, 2007 U.S. App. LEXIS 29458 (D.C.Cir. 14 Dec. 2007), motion granted, dismissed by, 2008 U.S. App. LEXIS 28124 (D.C. Cir. 14 May 2008). 144 See supra note 142: Charlene A. Caprio, p. 339. 145 See supra note 143: Malewicz case. 27 In Chabad146 case the district court granted the plaintiff’s motion to enforce the judgment, and concluded that while it would be “superfluous” to include specific exemptions for property covered by the immunity from seizure statutes in its order granting enforcement of the declaratory judgment – such immunities exits regardless of whether the court makes note of them – the court agreed to include such language into order in light of the concern expressed over such seizures147. The short analysis of the cases shows that IFSA can be useful and can help to entice art in United States, which gives the jurisdiction to bring the claim. Although the artworks on temporary loan are protected under IFSA it does not mean that it makes enforcement impossible.

3.2. “Trophies” of War, Compensatory restitution and Russian Federal Law on Cultural Valuables Displaced to the USSR as a Result of the Second World War and Located on the Territory of Russian Federation

The decrees issued by Joseph Stallin in 1945 for the Soviet removal of cultural property from Eastern European and German territories occupied by the Red Army were few148. Ten days after returning from the conference in Yalta, on 21 February 1945 Stalin signed the Decree of the State Committee of Defense No 7563 on the establishment of permanent commissions at the operating Soviet military fronts and on orders for removal of industrial equipment and materials from Poland and Germany. This decree ordered the creation of different throphy brigades to be sent to the front lines to remove to the USSR everything from heavy industry machinery to paintings by Rembrandt, shoes, hats, and typewriters. With the decree, namely, the Decree of the State Committee of Defense No 7590 ordered the establishment of the Special Committee under the State Committee of Defense which had to coordinate the activities of the trophy brigades. The most important decree of the State Committee of Defense was dealing specifically with removal of art collections (Dresden Gallery issues). The State Committee of Defense was ordered to remove “to Moscow for enrichment of state museums the most valuable works of painting, sculpture, and applied arts and also antiquarian and museum valuables in quantities nor exceeding 2000 items from trophy warehouse in Dresden”149. It would seem that there was necessity to compensate for Soviet cultural losses by equally important artifacts from specific named German collections but at the end of the war this concept

146 See supra note 133: Chabad case. 147 See supra note 102: Outline of Legal Principles, p. 6. 148 Konstantin Akinsha, Stalin’s Decrees and Soviet Trophy Brigades: Compensation, Restitution in Kind, or “Trophy” of War?, International Journal of Cultural Property (2010) at http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=7901882 . Site visited 5 April 2011. 149 Ibit. P. 196. 28 was replaced by the conception of total removal of cultural property from Soviet-occupied territories150. The idea to use concept of “restitution in kind” after the end of the war to compensate for cultural losses belongs to art historian Igor Grabar. He was the head of the Bureau of Experts which had to main tasks: 1) to assess the damages caused by the Nazis to the Soviet museums and 2) to select so-called eventual equivalents from museum collections in Axis countries. The Bureau could not to establish the list of losses because the large part of Soviet territory was still under occupation and museums documentation in the majority of provincial museums proved to be either nonexistent or at best unreliable151. This kind of list was essential to demand “restitution in kind” under international law152. Although the Bureau prepared the list of equivalents (this list also included objects from private collections). In the end according to the Soviet officials Nazis removed, damaged, or destroyed 564,723 museum objects in the entire Soviet Union. From the very beginning of operations in Soviet occupied territories, it became apparent to the trophy brigades that the search for the specified art works designated as “eventual equivalents” was virtually impossible. Instead, the trophy experts started to load entire collections on trains heading for the Soviet Union, often without sorting them153. It is known that in 1957 the special repositories of Soviet museums housed 2,614,874 art objects and 534 crates of archaeological materials154. Wayne Sandholtz did analysis whether “compensatory restitution” which claimed Soviet Union and now Federation of Russia exist in international law155. He concluded that “compensatory restitution” does not exist as a category or principle in international law. He also states that the principle of compensation cannot be applied to unilateral seizure of cultural objects as compensation for cultural losses. Despite the norms of international law the Russian government enacted a law entitled “On Cultural Treasures Transferred to the USSR during World War II and Located on the Territory of the Russian Federation” in 1997156. Article 6 of the law states that “[a]ll displaced cultural valuables imported to the USSR in realization of its right to compensatory restitution and located on the territory of the Russian Federation, with the exceptions of those specified in Articles 7 and 8 of the

150 Ibit. 151 Ibit. P. 199. 152 Ibit. 153 Ibit. P. 203. 154 Ibit. P. 212. 155 See supra note 3: Wayne SandHoltz, p. 147-148. 156 ФЕДЕРАЛЬНЫЙ ЗАКОН О КУЛЬТУРНЫХ ЦЕННОСТЯХ, ПЕРЕМЕЩЕННЫХ В СОЮЗ ССР В РЕЗУЛЬТАТЕ ВТОРОЙ МИРОВОЙ ВОЙНЫ И НАХОДЯЩИХСЯ НА ТЕРРИТОРИИ РОССИЙСКОЙ ФЕДЕРАЦИИ, РОССИЙСКАЯ ФЕДЕРАЦИЯ, 5 февраля 1997 года.

29 Federal Law, are the property of the Russian Federation and are federally owned157. The Article 8 specifies the three categories of cultural valuables that are exempt from law: 1) Cultural valuables for which an interested state presents evidence of having filed a claim for their restitution; 2) Cultural valuables which were the property of religious organizations or private charitable organizations; 3) Cultural valuables which belonged to individuals who were deprived of these valuables because of their active struggle against Nasizm and (or) because of their race, religion or national affiliation158. Article 9 of the law states that the claims must be made before 21 October 1999, that is, after eighteen month after law becomes effective. The law requests that only states, not individuals, are eligible to file the claims and these claims must be made to the Russian government159. Article 19 provides an exception for this rule the claims for “family heirlooms” may be filed directly by individuals. Under the law before any cultural property may leave Russia the State Duma must first approve the transfer by voting it160. The Hungarian government used this law and restituted the Sorospatak books 161. It took almost ten years to bring back to Hungary these unique cultural values, although it shows that it is possible to restitute lost property from Russian Federation. In period from 2000 to 2007 Russia restituted lots of works of art. This was made without litigation by settlements between countries or official organizations162.

3.3. Similarities and differences of art restitution in Western and Eastern Europe

The art restitution practice are not the same in Europe. Countries of Western Europe gave a greater attention to resolve Holocaust era disputes. The countries of Eastern Europe in most cases gives greater attention for restitution and compensation of immovable property, for this they are criticized by international community.

157 Ibit. 158 Ibit. 159 Ibit. Art. 18. 160 Ibit. Art. 18. 161 Jennifer Mohr Otterson, Art Restitution in Hungary: A Comparative Case Study of the Sorospatak Books and the Herzog Collection, 3 June 2011, at http://www.commartrecovery.org/sites/default/files/JenniferMohrOtterson.pdf . Site visited 3 March 2012. 162 Resolved Stolen Art Claims, Claims for Art Stolen During the Nazi Era and WWII, Including Nazi-looted Art and Trophy Art, Herrick, Feinstein LLP, 29 July 2011, at http://www.herrick.com/siteFiles/Practices/CE163C9847C6C9451FA3C2366B1AD5DC.pdf . Site visited 3 March 2012. 30 Between Baltic states Lithuania are leader resolving Holocaust era disputes. Lithuania has passed a few restitution laws, mostly covering immovable property claims, but no restitution law is in place covering specifically the restitution of Jewish cultural property. In 1998, the “International Commission for the Evaluation of the Crimes of the Nazi and Soviet Occupation Regimes in Lithuania” was formed, which soon split into two separate Commissions with one dealing specifically with the destruction of the Jewish community as a spiritual and religious community, as well as the confiscation of property. Some research is still ongoing. Lithuania has returned a number of Jewish religious artifacts, notably in 2002 when it returned 309 Torah scrolls and megillot. However a number of cultural institutions in Lithuania still hold looted Jewish artifacts, among them the National Museum (which continues to hold Torah scrolls)163. In 1998, the Czech Republic formed a Joint Working Commission aimed to mitigate property injustices inflicted on Holocaust victims. Two years later, in 2000, the Parliament passed Restitution Act No. 212/2000, which stipulates the responsibility of the director of a contacted cultural institution to return art objects if they were looted. In case of a dispute, the ruling by an independent court is decisive. The original deadline of December 2006 for presenting claims has since been abolished. The database “Restitution-Art”, sponsored by the Ministry of Culture, lists about 3,400 cultural objects with provenance gaps. A year after the restitution law was passed, the “Documentation Centre of Property Transfers of Cultural Assets of WW II. Victims” was founded. The Center’s major aim is to research historical and economic questions regarding confiscated Jewish cultural property, in particular art objects. Cultural institutions in the Czech Republic are conducting provenance research and have restituted objects that were spoliated. However, some looted artifacts, notably hundreds of thousands of books that went to the National Library in Prague, have not been researched or restituted. Some private museums, which are not bound by the restitution law, particularly the Jewish Museum, are also conducting provenance research and have restituted objects. Objects that have been restituted may nonetheless be subject to export restrictions164. Hungary claims to have lost more than 40,000 objects of art, including paintings, decorative art and other objects such as medals during World War II. However, about 90-92 % of the artworks taken out of the country were returned between 1945 and 1948, with approximately 20% remaining in Hungary’s cultural institutions – including artworks looted from Hungarian Jews. The National Gallery and the Museum of Fine Arts are known to hold looted art. Despite numerous legal attempts, Ms. Nierenberg, who is claiming the artworks of her late father, the Hungarian banker Baron Mor Lipot Herzog, who had collected between 1,500 and 2,500 artworks, has been

163 Holocaust-Era Looted Art: A World-Wide Preliminary Overview, HOLOCAUST ERA ASSETS CONFERENCE, Prague, June 2009 at http://www.claimscon.org/forms/prague/looted-art.pdf . Site visited 26 March, 2011. 164 Ibit. 31 denied any restitution. The Herzog collection is not the only collection of Jewish artworks kept by Hungarian cultural institutions. According to experts in the field, Hungarian museums still store several hundred works of art obtained under questionable circumstances. Hungary has never set up a historical commission to investigate Hungary’s role and participation in the financial and physical annihilation of its Jews, and it has not initiated any provenance research by its cultural institutions. While a few restitutions have taken place, important works of art have consistently been kept from being restituted to their rightful owners165. The different practice are used in Western Europe in such countries as France, Liuxembourg, the Netherlands. In the Netherlands, the public authorities have opted to grant the same compensation to all victims of Nazi persecution for the assets or possessions lost or spoliated. The choice of such a policy has enabled to pay special attention to the research and restitution of the confiscated cultural assets. In relation to the cultural assets, the “Herkomst Gezocht” Commission, better known under the name of the “Ekkart Commission”, has conducted an extensive research and provided advice to the Minister of Education, Culture and Science as to the policy to pursue. Its research was focused on the “NK” works and on the cultural assets which have been transferred to the (Royal) Museums of the Netherlands. The spoliated goods which have been retrieved but could not so far be returned are owned by the State and are “lent” to the museums. The opinions of the Ekkart Commission were followed and the Government set up an independent advisory committee to evaluate individual restitution requests. According to the choice of the parties, this Committee expresses an opinion, either binding or not, on an application for restitution of a spoliated cultural asset. About 600 to 650 works of art have already been restituted in this way. Similarly as in France, exhibitions have been organised displaying some of the works of art spoliated during the WWII. Reports have also been published in hard copies, on CD-ROMs and also on websites. The Netherlands are actively trying to find the heirs. A new program focused on the research of the provenance of the works of art has been envisaged for the period 2009-2012. It will be led by the “Vereniging van Nederlandse Musea”, will cover the period between 1933-1948 and will focus on other than royal museums. There is a question whether this system, aimed at verifying of an alleged provenance of the assets in the period in question, can be recommended to other countries. The success of such a research depends largely on the organisation, functioning and cooperation of the museums in terms of facilitating the access to the inventory available and checking of its reliability166.

165 Ibit. 166 Jean Pierre Bady, Restitution and Compensation In Four Western European Countries Belgium-France- Luxembourg-the Netherlands, Review and Outlook, June 2009, at http://www.google.lt/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CEUQFjAA&url=http%3A%2F%2Fww w.holocausteraassets.eu%2Ffiles%2F200000223- 32 In Luxembourg situation has to be noted that the number of works of art spoliated was relatively limited. On the basis of the testimonies from the post-war period, it was possible to establish a list of some forty paintings that had belonged to Jews. Most of these works were created by Luxembourg painters, mainly by Guido Oppenheim, who was himself deported to Auschwitz at the age of 82. None of these paintings was found. The Luxembourg Office of Economic Restitution (O.R.E.L.) has reported that some paintings were found in Germany but due to inexistent documentation, no information on this research is available. Most of the works of art were confiscated in the residences of the Grand Ducal family and in the homes of the members of the government in exile. All works which could be found, due also to the cooperation of the occupying powers in Germany, were taken to Luxembourg and restituted. A painting by Cranach, sold by its owner to a Dutch merchant Kajetan Mülhman, had ended up in Herman Göring’s collection. As this sale was considered illegal (no permission had been granted according to the Luxembourg or German law), the Government recovered the painting as a national asset and entrusted it to the National Museum of History and Art. In general, it can be said that recovery of and/or compensation for the spoliated works of art has caught by now the attention of neither the public nor the Government. The major issues of the post-war period were the reconstruction (one third of the country being devastated by the Battle of the Ardennes ), supplies (Luxembourg depended largely of Belgium as they were joined in an economic and monetary union) and repatriation (4,000 persons forcibly relocated to Silesia, 4,000 political deportees; 10,000 young people forcibly enrolled in the German army, 50,000 refugees for a total population of 290,000 people). Moreover, the War Damage Compensation Act excluded all “luxury” goods, therefore also the works of art. However, a few years ago, the Grand Lodge of Luxembourg was able to recover its archives which had been found in Moscow. An exposition on the spoliation of cultural assets, organised by the Museum of History of the City of Luxembourg in 2005 (The Big Spoliation) has presented this issue to a very interested audience but it was impossible to go on further with the research. No painting by a grand master belonging to a Luxembourg citizen disappeared during the war. However, the issue of the refugees, namely Jews, still remains open but unfortunately, the relevant documentation is insufficient167.

4feaf59f0d%2FWG_LA_9_Bady.pdf&ei=UxnHT7vAL4jP4QSh5ZjQDg&usg=AFQjCNFMPdd6G5W9yHfuLbSXn_R U4gkrGg&sig2=ADFDgvxim0tgzuHR8oLcfA . Site visited 4 April 2011. 167 Ibit. 33 4 COMPENSATION ISSUES

When the works of art can not be restituted then for the claimant has to be paid compensation to the market value of the property. Analysing compensation isssues there are important several facts: who has to pay compensation, who decides what amount of money should be redeemed. Decision whether return art to the legal owner or to pay compensation is the discresion of court. In the case Price v. United States168 court decided to pay 8 million dolors compensation and do not return claimed paintings. The case involved watercolors of Adolf Hitler that are locked in the basement of an Army building since they were seized shortly after war169. Apperently, the U.S. government still considers the watercolors too horrible to expose to the public170. The value of the work of art determines art appraisers. They have to have the licence and be approved by the certain art appraisers organization. Although working at large banks, auction houses and small firms, appraisers exert influence in every corner of art finance. In a secretive market where accurate information is scarce, these experts guide high-end collectors in setting sale prices, making tax deductions, buying insurance and establishing collateral for loans. While the appraisers’ reach is broad, their valuations are influenced by everything from their personal tastes to the desire to make higher commissions171. Not every country has organization which gives the licence for appraisers. For example in Lithuania to evaluate cultural values and artworks can only the expert in the department of Ministry of Culture172. They evaluates only these values which belongs to the Republic of Lithuania. All cultural values in Lithuania has to have passport whithout it the values can not leave the territory of Republic173. There are the problem with the transportation and selling of cultural values and artworks which belongs for private persons. It is difficult to categories in what countries compensation has to pay government and where the museum or gallery. In Eastern Europe case practice shows that the claim has to be brought agains government, because the museum or gallery are the governmental institutions174.

168 Price v. United States, 69 F. 3d 46, 48 (1995). 169 Ibit. 170 Michael R. Cosgrove, Still Seeing Red: Legal Remedies For Post-Communist Russia’s Continued Refusal To Relinquish Art Stolen During Warld War II, Gonzaga Journal of International Law 2008-2009, 12 Gonz. J. Int’l L. 4. P. 2. 171 Vernon Silver, The Dark Art of Appraisal, Bloomberg Market Magazine, 5 Oct 2010, at http://www.bloomberg.com/news/2010-10-05/the-dark-art-of-appraisal.html . Site visited 4 March 2011. 172 Lietuvos Respublikos Kilnojamų Kultūros Vertybių Apsaugos Įstatymas, Nr. I-1179, 1996. Vilnius. 173 Ibit. 174 Lietuvos Respublikos Muziejų Įstatymas, Nr. I-930, 1995. Vilnius. 34 Although the United Kingdom passed a bill which gives the right for museums to restitute art or to pay compensation175.

175 UK museums can return looted art, 13 Nov. 2009, at http://news.bbc.co.uk/2/hi/entertainment/arts_and_culture/8358902.stm. Site visited 3 March 2011. 35 CONCLUSIONS

The purpose of the thesis was to analyze whether former owner can get restitution or compensation for artworks which were seized during war. The question is answered and hypothesis approved: former owner can get restitution or compensation for artworks seized during war. After the made analysis of the thesis following conclusions are: 1. The international law protects cultural heritage and the artworks as the part of it from destruction and plunder during war. International law grants immunity for cultural property and for works of art as a part of it during war. It can not be seized, captured, destroyed. The private property is fully protected, and the works of art which belongs to the state has general or special protection in accordance with measures taken by the state. 2. The post-war treaties and agreements created international law practice regarding the restitution of artworks. Treaties after Napaleonic wars and WWI created practice of special restitution, after WWI and WWII emerge restitution in kind. As a brief analysis shows post-war agreements regulated only the restitution in state- by-state level. Restitution of private property emerge only after WWII and for historical reasons the disputes were not resolved in time. 3. Holocaust era art restitution cases can be categorized into two general groups according to the facts surrounding claims: based on Nazi confiscation (theft, looting, forcible physical possession); arising from coerced sales. The courts in most cases are favourable for the heirs and survivors who tries to reclaim confiscated art. In the disputes which arises from coersed private sales the result not always is in favor for the plaintiffs. 4. When the claim for lost property are brought to the court after decades past an injury the plaintiffs has to confront with difficulties in courts. Three mine types of difficulties: bona fide purchaser, statute of limitations and conflicts of law. In the United States and other common law countries a thief can not pass title, even there have been several subsequent buyers and each of those buyers was unaware that was buying stolen property. Contrary to the common law countries in most civil law countries a thief can pass title to a good faith purchaser if the owner does not find his stolen property or the thief within few years. 5. In United States plaintiff can bring the suit agains foreign state under Foreign Sovereign Immunities Act. The expropriation exception is most utilized in restitution cases. This exception provides that, where property has been expropriated in violation of international law, and that property, or any property 36 exchanged for it, is present in the United States in connection with a commercial activity carried on in the United States by the foreign state, that state will not be immune from suit where the rights to such property are at issue. To enforce courts decision could be problematic because an art on temporary loan are protected under immunity from seizure law. 6. The Federal Law of Russia gives a right to recover lost art under few exeption: if the art belong to religeous organization, or the property was stolen as a result of nazi persecution. The suit has to be brought within 18 month, by the government of the state (individuals has to be represented by their government officials). 7. The art restitution practice are not the same in Europe. Countries of Western Europe gave a greater attention to resolve Holocaust era disputes. The countries of Eastern Europe in most cases gives greater attention for restitution and compensation of immovable property, for this they are criticized by international community.

37 BIBLIOGRAPHY

Legislation

1. Convention for the Protection of Cultural Property in the Event of Armed Conflict. The Hague, 14 May 1954. 2. Convention respecting the Laws and customs of War on Land . The Hague, 18 October 1907. 3. ФЕДЕРАЛЬНЫЙ ЗАКОН О КУЛЬТУРНЫХ ЦЕННОСТЯХ, ПЕРЕМЕЩЕННЫХ В СОЮЗ ССР В РЕЗУЛЬТАТЕ ВТОРОЙ МИРОВОЙ ВОЙНЫ И НАХОДЯЩИХСЯ НА ТЕРРИТОРИИ РОССИЙСКОЙ ФЕДЕРАЦИИ, РОССИЙСКАЯ ФЕДЕРАЦИЯ, 5 февраля 1997 года. 4. Final Act of the United Nations Monetary and Financial Conference. Bretton Woods, New Hempshire, July 1 to July 22 1944. 5. Foreign Sovereign Immunities Act of 1976, Pub. L. 94-583, 90 Stat. 2891, 28 U.S.C. 6. Holocaust Victims Redress Act, Pub. L. No. 105-158, 1998. 7. Inter-Allied Declaration Against Acts of Dispossession Committed in Territories Under Enemy Occupation or Control. London, 5 January 1943. 8. Immunity From Seizure Act, 22 U.S.C. 2459. 9. Lietuvos Respublikos Kilnojamų Kultūros Vertybių Apsaugos Įstatymas, Nr. I-1179, 1996. Vilnius. 10. Lietuvos Respublikos Muziejų Įstatymas, Nr. I-930, 1995. Vilnius. 11. Nazi War Crimes Disclosure Act, Pub. L. No. 105-246, 112 Stat. 1859, 1998. 12. Resolution 1205 of the Council of Europe, 5 November 1999. 13. The Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments, 26 August 1935. 14. Treaty of Peace between Poland, Russia and the Ukraine. The Riga, 18 March 1921. 15. U.S. Holocaust Assets Commission Act of 1998, Pub. L. No. 105-186, 112 Stat. 611, 1998. 16. Vilnius Forum Declaration. Vilnius, 5 October 2000. 17. Washington Conference Principles on Nazi-Confiscated Art. Washington, 3 December 1998.

38 Books

1. Michael J. Bazyler, Holocaust justice, New York University Press, 2003. 2. Michale Bazyler and Roger P. Alford, Holocaust Restitution, Perspectives on Its Litigation and Its Legacy, New York University, 2006. 3. Simon Houpt, Museum of the Missing: A History of Art Theft, 2006. 4. Petras Algirdas Čiočys, Tarptautinė humanitarinė teisė, Vilnius, 2002.

Articles

1. Andrew Adler, Expanding the Scope of Museums Ethical Guidelines With Respect to Nazi- Looted Art: Incorporating Restitution Claims Based on Private Sales Made as a Direct Result of Persecution, International Journal of Cultural Property (2007) at http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=1046288. Site visited on 20 March 2011. 2. Bert Demarsin, Let’s not talk about Terezin: restitution of Nazi era looted art and the tenuousness of public international law, 37 Brooklyn Journal of International Law 117 (2011). 3. Charlene A. Caprio, Artwork, Cultural Heritage Property, and Foreign Sovereign Immunities Act, International Journal of Cultural Property (2006) at http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=687368 . Site visited 20 March 2011. 4. Grosz Heirs v. Museum of Modern Art, at http://www.commartrecovery.org/cases/grosz- heirs-v-museum-modern-art (2010). Site visited 20 March 2011. 5. Herrick Feinstein LLP, Outline of Legal Principles Governing Holocaust-Looted Art Cases, 2011 at http://www.commartrecovery.org/sites/default/files/OutlineMaterialsAppraiserConference.p df . Site visited 20 March 2012. 6. Holocaust Claims Processing Office, Painting Lost During Forced Sale Returned to its Rightful Owners, News release, 19 October 2006 at http://banking.state.ny.us/pr061019.htm . Site visited on 4 March 2011. 7. Holocaust-Era Looted Art: A World-Wide Preliminary Overview, HOLOCAUST ERA ASSETS CONFERENCE, Prague, June 2009 at http://www.claimscon.org/forms/prague/looted-art.pdf . Site visited 26 March, 2011.

39 8. Jennifer Mohr Otterson, Art Restitution in Hungary: A Comparative Case Study of the Sorospatak Books and the Herzog Collection, 3 June 2011, at http://www.commartrecovery.org/sites/default/files/JenniferMohrOtterson.pdf . Site visited 3 March 2012. 9. Jean Pierre Bady, Restitution and Compensation In Four Western European Countries Belgium-France-Luxembourg-the Netherlands, Review and Outlook, June 2009, at http://www.google.lt/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CEUQFjAA &url=http%3A%2F%2Fwww.holocausteraassets.eu%2Ffiles%2F200000223- 4feaf59f0d%2FWG_LA_9_Bady.pdf&ei=UxnHT7vAL4jP4QSh5ZjQDg&usg=AFQjCNF MPdd6G5W9yHfuLbSXn_RU4gkrGg&sig2=ADFDgvxim0tgzuHR8oLcfA Site visited 4 April 2011. 10. Konstantin Akinsha, Stalin’s Decrees and Soviet Trophy Brigades: Compensation, Restitution in Kind, or “Trophy” of War?, International Journal of Cultural Property (2010) at http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=7901882 . Site visited 5 April 2011. 11. Lina M. Monten, Soviet World War II trophy art in present day Russia: the events, the law, and current controversies, 15 DePaul-LCA Journal of Art and Entertainment Law 37 (2004). 12. Michael J. Bazyler and Kearston G. Everitt, Holocaust Restitution Litigation in the United States: An Update, ACLU International Civil Liberties Report, 10 December 2004 at http://www.aclu.org/iclr/bazyler.pdf . Site visited on 20 March 2011. 13. Michelle J. Turner, The Innocent Buyer of Art Looted During World War II, Journal of Transnational Law, Vol. 32, Nr. 5, November 1999. 14. Michael R. Cosgrove, Still Seeing Red: Legal Remedies For Post-Communist Russia’s Continued Refusal To Relinquish Art Stolen During Warld War II, Gonzaga Journal of International Law 2008-2009, 12 Gonz. J. Int’l L. 4. 15. Ralph Blumenthal, New efforts to recover Nazi plunder; but pessimism grows for recoveries, New York Times, Feb. 27, 2003, at http://www.nytimes.com/2003/02/27/arts/new-efforts-to-recover-nazi-plunder-but- pessimism-grows-for-recoveries.html?pagewanted=all&src=pm. Site visited on 20 March 2011. 16. Randy Dotinga, US Lawsuits Pursue Lost Art, Christian Science Monitor, July 5, 2005, at http://www.csmonitor.com/2005/0705/p03s01-alar.html. Site visited on 20 March. 17. Resolved Stolen Art Claims, Claims for Art Stolen During the Nazi Era and WWII, Including Nazi-looted Art and Trophy Art, Herrick, Feinstein LLP, 29 July 2011, at

40 http://www.herrick.com/siteFiles/Practices/CE163C9847C6C9451FA3C2366B1AD5DC.pd f . Site visited 3 March 2012. 18. Robinson, Walter V., and Maureen Goggin, Stolen Art Claims Shake N.Y. Museum, Boston Globe, 24 July, 1997. 19. Stephen W. Clark, World War II Restitution Cases, Legal Issues in Museums Administration, edited by American Law Institute and Bar Association, 543-561, 2006. 20. UK museums can return looted art, 13 Nov. 2009, at http://news.bbc.co.uk/2/hi/entertainment/arts_and_culture/8358902.stm. Site visited 3 March 2011. 21. Yeal Weitz and Waffiyah Mian, Holocaust Art Restitution Litigation in 2010, The Art Law Newsletter of Herrick, Feinstein LLP, Vol. 8, Winter 2011, http://www.herrick.com/siteFiles/Publications/91EA0EA1B2A27866A62AFCFA39BF0398 .pdf . Site visited 5 March 2012. 22. Yael Weitz, Holocaust Art Restitution Litigation in 2009, The Art Law Newsletter of Harrick Feinstein LLP, Vol. 5, Winter 2010 at http://www.herrick.com/siteFiles/LegalServices/69A061F7F04725969DDE70549DE61746. pdf . Site visited 5 May 2011. 23. Vernon Silver, The Dark Art of Appraisal, Bloomberg Market Magazine, 5 Oct 2010, at http://www.bloomberg.com/news/2010-10-05/the-dark-art-of-appraisal.html . Site visited 4 March 2011. 24. Wayne SandHoltz, Plunder, Restitution, and International Law, International Journal of Cultural Property (2010) at http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=7901876. Site visited on 20 March 2011.

Case Law

1. Agudas Chasidei Chabad v. Russian Federation, 729 F. Supp. 2d 141 (D.D.C. 2010), motion granted, motion denied by 2011 U.S. Dist. LEXIS 80971 (D.D.C. 26 July 2011). 2. Bakalar v. Vavra, 619 F.3d 136 (2d Cir. 2010), motion denied, 2011 U.S. Dist. LEXIS 4766 (S.D.N.Y. 14 Jan., 2011), motion to strike denied, 2011 U.S. Dist. LEXIS 91851 (S.D.N.Y. 17 Aug., 2011). 3. Cassirer v. Kingdom of Spain, 580 F.3d 1048 (9th Cir. 2009), on reh’g, 616 F.3d 1019 (9th Cir. 2010), cert. denied, 2011 U.S. LEXIS 4928 (U.S. 27 June 2011). 4. Republic of Austria v. Altmann, (03-13) 541 U.S. 677 (2004). 41 5. De Csepel v. Republic of Hungary, 2011 U.S. Dist. LEXIS 98573 (D.D.C. 1 Sept. 2011). 6. Grosz v. Museum of Modern Art, 722 F. Supp. 2d 473 (S.D.N.Y. 2010), aff’d, 403 Fed. Appx. 575 (2d Cir. 2010). 7. Freud v. Republic of France, 2008 U.S. Dist. LEXIS 105432 (S.D.N.Y. 2008). 8. Malewicz v. City of Amsterdam, 362 F. Supp. 2d 298 (D.D.C. 2005), motion granted, motion dismissed by 2006 U.S. App. LEXIS 615 (D.C. Cir. 10 Jan. 2006), motion granted 517 F. Supp. 2d 322 (D.D.C. 2007), motion granted, 2007 U.S. App. LEXIS 29458 (D.C.Cir. 14 Dec. 2007), motion granted, dismissed by, 2008 U.S. App. LEXIS 28124 (D.C. Cir. 14 May 2008). 9. Menzel v. List 267 N.Y.S.2d 804, 806 (1966), modified, 279 N.Y.S.2d 608 (1967), rev’d, 24 N.Y.2d 91 (1969). 10. Price v. United States, 69 F. 3d 46, 48 (1995). 11. Toledo Museum of Art v. Ullin, No. 3:06 CV 7031, 477 F. Supp. 2d 802 (N.D. Ohio 8 Dec., 2006). 12. Schoeps v. Museum of Modern Art, 2009 U.S. Dist. LEXIS 5647 (S.D.N.Y. 2009). 13. Shoeps v. Andrew Lloyd Webber Art Foundation, No. 06 CV 12934 (S.D.N.Y. 3 Nov. 2006). 14. Sotheby‘s Inc. v. Shene, 2009 U.S. Dist. LEXIS 23596 (S.D.N.Y. 23 March, 2009), 2009 U.S. Dist. LEXIS 30714 (S.D.N.Y. 9 April, 2009). 15. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 489 (1983). 16. Westfield v. Federal Republic of Germany, 2009 U.S. Dist. LEXIS 65133 (M.D. Tenn. 2009).

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