Cultural objects have a protected status on account of their intangible value, as symbols of an identity. This has been so since the early days of international law, and today there is an extensive... Show moreCultural objects have a protected status on account of their intangible value, as symbols of an identity. This has been so since the early days of international law, and today there is an extensive legal framework that ensures this protection.Yet, when it comes to claims by former owners to items such as Nazi looted art, colonial booty, or more recently looted antiquities, the situation is less straightforward. On the one hand, such claims are often not supported by positive law at all. On the other hand, non-binding regulations urge present possessors to find `just' solutions to claims – not as a legal obligation but as a matter of morality. This raises a fundamental question: if we believe that the application of the law leads to injustice, is it not time to change the law or the way it is applied?This study explores how cross-border claims to cultural objects fit in the wider legal framework, and where blind spots or clashes occur. Its aim is to identify new directions that can help further develop this field, with the ultimate aim of fostering just solutions. Show less
AbstractIn the Netherlands, as in many other jurisdictions, claims to Nazi-looted art forma ‘grey category’ where positive law is at odds with ethical norms. Dutch private law, like other civil law... Show moreAbstractIn the Netherlands, as in many other jurisdictions, claims to Nazi-looted art forma ‘grey category’ where positive law is at odds with ethical norms. Dutch private law, like other civil law systems, is characterised by a strong protection of legal security and the interests of new possessors, leaving little scope for title claims based on a loss which occurred longer than 75 years ago. On the other hand, the Dutch Restitutions Committee (the ‘Restitutiecommissie’) has recommended the return of almost 600 works of art to Nazi victims or their heirs since its establishment in 2002. How can this apparent contradiction be explained? How is a ‘claimant-unfriendly’ legal reality brought into line with international soft law instruments like the 1998 Washington Principles? And what is the relevance of the special Dutch post-War legislation that was adopted with an eye on the restoration of individual rights that were lost as a result of Nazi looting, today? These questions are addressed in this article. To that end, as an introduction to the topic, section 1 renders a brief historical overview of Nazi looting in the Netherlands and the organisation with regard to recovery and restitution in the post-War period. Section 2 deals with the post-War legal framework that may be of relevance for artefacts that were looted or sold in the Netherlands during the Nazi period. Furthermore, section 3 deals with the legal framework for claims regarding artefacts that, today, are found within the Dutch jurisdiction, addressing both the ‘hard’ and ‘soft’ law regulations (i.e. black-letter law and the ‘ethical’ model of the Dutch Restitutions Committee). Section 4 concludes with some final remarks. Show less
While international conventions clearly establish the rule that misappropriated artefacts should be returned, the situation with respect to losses that predate these conventions is highly... Show moreWhile international conventions clearly establish the rule that misappropriated artefacts should be returned, the situation with respect to losses that predate these conventions is highly fragmented. The question of whose interests are given priority in title disputes that regard such losses – those of the former owner or a new possessor – vary per jurisdiction. Given the fragmented situation, international soft-law instruments promote an ethical approach and alternative dispute resolution (ADR) as a way of filling this “gap”. A lack of transparent neutral procedures to implement and clarify soft-law norms has proven problematic in this regard. The questions raised in this paper are: why is ADR necessary; and what about guarantees in terms of access to justice in such an “ethical” framework? Two recent initiatives are discussed in this article: the European Parliament resolution of 17 January 2019 on cross-border restitution claims of works of art and cultural goods looted in armed conflicts and wars; and the newly established Court of Arbitration for Art in The Hague. Show less
The return of cultural objects lost as a result of colonial rule is a controversial issue. A common response is: “it was legal at the time” and, therefore, not a legal issue. But is that so? This... Show moreThe return of cultural objects lost as a result of colonial rule is a controversial issue. A common response is: “it was legal at the time” and, therefore, not a legal issue. But is that so? This article argues that it is not a lack of legal norms that explains this belated discussion but, rather, the asymmetrical application of norms. Moreover, a human rights law approach, focusing on the heritage aspect of cultural objects for people today—instead of a sole focus on property title—offers useful tools to structure this field. To illustrate these points, a case concerning an African ancestral sculpture today known as the “Bangwa Queen” will be assessed on its merits under international law. The Bangwa Queen is of spiritual importance to the Bangwa, a people indigenous to the western part of Cameroon. She was taken as part of a collection of so-called lefem figures by German colonizers in 1899 and is currently part of a French museum collection. Show less
This paper underlines the importance of uniform principles and transparent procedures for Holocaust-related art claims. Over the last twenty years ethical standards which support restitution of... Show moreThis paper underlines the importance of uniform principles and transparent procedures for Holocaust-related art claims. Over the last twenty years ethical standards which support restitution of artefacts looted in the past have gained ground. However, positive law is often not in line with these ethical standards. In fact, domestic legal systems differ widely. As a consequence, parties looking for 'just' answers to their disputes will often find themselves in a legal labyrinth with uncertain outcomes. In some European countries advisory committees were installed for Holocaust-related claims, each with their own approach but often with a limited mandate. A new development is that an increasing number of cases – also regarding European museum property – are brought before American courts. Taking account of this institutional vacuum (because no neutral forum is in place that can clarify or apply soft-law norms that reflect present-day morality) this paper argues in favour of a transnational approach in finding 'fair and just' solutions and the setting up of a European claims procedure. Show less
