by Marc Masurovsky
How have the Wahington Principles on Nazi-confiscated Art of December 1998 reshaped the landscape of restitution of art objects suspected of having been illegally displaced and looted between 1933 and 1945?
The purpose of the Washington Principles has not been to promote actual restitution—the physical return of a looted and displaced art object to its rightful owners and their descendants. It is to provide a framework by which art museums (and by extension the art market) may find solutions to ownership disputes over these contested objects and help them settle or dismiss claims filed against them by the purported rightful owners. The key to the Washington Principles lies in the expression “just and fair solutions” coined by Ambassador Stuart E. Eizenstat, then an Under Secretary for Economic, Agricultural and Business Affairs, and currently the chair of the Washington, DC-based US Holocaust Museum’s Memorial Council. That expression is enshrined in Washington Principle #8.
8. If the pre-War owners of art that is found to have been confiscated by the Nazis and not subsequently restituted, or their heirs, can be identified, steps should be taken expeditiously to achieve a just and fair solution, recognizing this may vary according to the facts and circumstances surrounding a specific case.
When repeated daily for 28 years, the expression “seeking just and fair solutions” becomes embedded in the human psyche (much like a bad summer beach song that you can’t shake off). This expression constitutes in effect the substrate of a current possessor’s playbook with which to resolve ownership disputes submitted by purported rightful owners of contested art works and objects. The goal is to seek a reasonable solution where, one hopes, all parties will be more or less satisfied by the outcome.
The reality is a bit starker: like in a boxing match or a sports competition, only one person remains standing, regardless of what anyone tells you. There is nothing kumbaya about negotiating for the recovery of a looted art object. It sucks. More often than not, the process, the envisioned collegial dialogue with the possessing entity generally turns into a legal slug fest that can stretch on for years if not decades where appeals to moral and ethical norms fall by the wayside and the holder hides behind well-heeled legal defenses. When the just and fair solutions are invoked as a guide to resolving the dispute, you know that the claimant may not recover the physical ownership of the contested object but instead will have to accept a financial settlement that extinguishes the claim. In some sense, the just and fair solutions behave like a glorified fire extinguisher directly pointed at the claimant’s quest for justice (restitution).
If I sound derisive about the Washington Principles, it is precisely because they were never designed to help claimants, the victims of the act of plunder. They were framed to provide a shield behind which current holders could fend off claimants’ assaults on their beloved collections.
Still, let’s try to be positive.
Do the Principles actually help in any way in the recovery process? The results are mixed. Since the decision to restitute rests ultimately in the hands of the current possessor, lest it is ordered by a court to hand over the object, claimants must appeal to the possessors’ moral and ethical sense of justice and plead for it to “do the right thing.” A classic domination/ submission scenario where the cards are invariably stacked against the claimant who is forced to play the role of a submissive and solicitous creature.
Nevertheless, the Principles have decidedly left their imprint “with the passage of time” on the behavior of certain museums and auction houses. Assuredly, this evolution represents genuine progress. It has not led to a one-for-one relationship between claim and restitution. Instead, it has helped convince governments and cultural institutions to accept a dialogue with claimants and to pave the way for negotiations towards a settlement of the restitution claim.
Restitution lawyers routinely invoke the Principles as they seek restitution on behalf of their clients. Likewise, current holders’ lawyers invoke the principles to establish their right to maintain their ownership of the contested object. The temptation for some restitution lawyers to secure a settlement is always there instead of aspiring to an actual restitution which may trigger an extended tussle with the current possessor. An easy way out? Lengthy legal battles are very costly and most claimants cannot afford them.
The Washington Principles are “soft”. They are guidelines to be interpreted as one sees fit. A growing number of current holders nowadays realize that these Principles are here to stay (28 years later) and that they have become part of the landscape. They also are keenly aware that the keywords “just and fair” are not synonymous with “restitution” but instead signal that they can find an equitable outcome that is acceptable to their interests. Ultimately, the “just and fair” approach swings in favor of a current possessor not surrendering an object to the claimant. The Washington Principles have achieved their aim.
Claimants, on the other hand, have to make their peace with the fact that the laws of supply and demand combined with the absence of effective government regulations override the impact of genocide on decisions affecting the ownership of works and objects of art. If they wish to prevail against a current possessor, they must seek unconventional approaches and adopt unorthodox strategies that fall outside the established framework of a restitution negotiation. Claimants’ rights have a greater chance of success outside “the box” rather than inside “the box.”
Justice in the face of genocide continues to be elusive, performative and symbolic. In that sense, the Washington Principles are “performative.”
