The Gyeongju Declaration of 2016

by Marc Masurovsky

Three years ago, representatives from China, Turkey, Greece, Cambodia, UNESCO, the United States, the United Kingdom, and South Korea, gathered at Gyeongju, South Korea, to discuss the status of looted cultural objects and their recovery by rightful owners.

A declaration was drafted by representatives of the above nations and NGOs and ratified by the conference participants, most of whom hailed from South Korea. The declaration is a worthy reminder that, in the absence of art market denizens and museums, cooler heads prevail and a more fruitful dialogue can produce more far-reaching statements of principle than the museum-inspired Washington Principles of December 1998. 

 
Therefore, I invitee you to read through the various components of the Gyeongju Declaration which still stands as one of the more progressive statements of its kind on market behavior, the rights of claimants and source nations, and means by which to achieve increased due diligence and ethical behavior in cultural institutions worldwide.

The Gyeongju Declaration, was drafted, revised, discussed and ratified, paragraph by paragraph, by all participants at the 6th International Conference of Experts on the Return of Cultural Property which took place in Gyeongju, the Republic of Korea, from October 17-19, 2016.


The Gyeongju Recommendation
We, the participants of the “6th International Conference of Experts on the Return of Cultural Property," held in Gyeongju, Republic of Korea, from 17 to 19 October 2016,

Expressing our sincere gratitude to our hosts, the Ministry of Foreign Affairs and the Cultural Heritage Administration of the Republic of Korea, to our organizers, the Overseas Korean Cultural Heritage Foundation and the Cultural Property Return Campaign Center, and last but not least to our sponsors, Gyeongsangbuk-do Provincial Government, the City of Gyeongju, and the Korean National Commission for UNESCO, for their outstanding efforts and dedication,

Recognizing that the International Conference of Experts on the Return of Cultural Property, which was first proposed by the Republic of Korea in 2011 and whose first session was held in Seoul in the same year, with the second session in Seoul in 2012, third session in Ancient Olympia, Greece in 2013, fourth session in Dunhuang, China in 2014, fifth session in Nevsehir, Turkey in 2015, and sixth session here in Gyeongju, the Republic of Korea this year, has provided precious opportunities for the international community to share its experiences and knowledge on the return of cultural property and join the fight against the illicit trade in cultural property,

Welcoming the U.N. Resolution A/70/76, unanimously adopted in its December 9, 2015 General Assembly meeting and especially the operative paragraph 7 of this Resolution, where for the first time the recent institution of International Conference of Experts on the Return of Cultural Property as well as their concluding documents were recognized,

Recalling the Seoul Declaration (2011), the Seoul Recommendation (2012), the Ancient Olympia Recommendation (2013), the Dunhuang Recommendation (2014), and the Cappadocia Recommendation (2015) adopted by the previous International Conferences of Experts on the Return of Cultural Property.

Noting that international legal instruments, including the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954) and its two protocols (1954 and 1999), the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property (1970), and the UNIDROIT Convention on Stolen or Illicitly Exported Cultural Objects (1995), as well as the devoted efforts and subsequently-adopted resolutions of the United Nations (UN) and legal instruments of the United Nations Educational, Scientific and Cultural Organization (UNESCO), have contributed to the prevention of the illicit trade in cultural property and its return to countries of origin,

Acknowledging that not only international non-governmental organizations, such as the International Council of Museums (ICOM), but also public and private institutions, including museums, libraries, and religious organizations, as well as the general public and local communities, have ever-increasing roles to play in the struggle against the illicit trade in cultural property,

Commending, in particular, that the amicable efforts by Korean civil society and religious organizations to recover illicitly exported cultural property by means of dialogue and mutual exchange cooperating with other foreign institutions in possession thereof have set a positive precedent that can be emulated by numerous states which have similarly suffered from the illicit export of their cultural property,

Observing greater need for administrative and judicial mutual assistance between countries and closer cooperation from auction houses, museums, and libraries in each country to prevent new means of illicit trade in cultural property in the art market, including online sales,

Condemning any uncivilized acts of vandalism directed against cultural property, including the recent destruction and illegal removal of cultural property in the conflict-ridden Middle East and the rest of the world,

Recommend that:
1. Each State should closely cooperate with other States for the return or restitution of illegally exported cultural property and the prevention of the illicit export of cultural property, and reinforce existing networks among public and private organizations, as well as individuals to share and exchange information concerning stolen or illicitly exported cultural property and its restitution;

2. Each State should continue to update the existing inventory of state owned and privately owned cultural property, as well as the databases of stolen or illicitly exported cultural property, and share actively such information with governments, relevant institutions, and non-governmental organizations of other States aiming to establish a common publicly available international platform;

3. Each State should continuously monitor the art market, including online markets, to control the illicit trade in cultural property, raise awareness of the legal and ethical duties of due diligence for participants of such markets, and impose administrative and judicial sanctions, when appropriate;

4. Each State should allocate resources to encourage provenance research, to facilitate licit trade in cultural property, and develop and implement educational programs to share and disseminate the outcomes of such research, thereby improving the capacity of those who work in the area.

5. Museums, libraries, and other public and private organizations that hold cultural property and collections are encouraged to: a) Take appropriate action to facilitate the rapid return of human remains and sacred cultural property when they receive a request for the return of such property, taking into account the wishes of the departed, the interests and beliefs of the members of the community, ethnic group or religious society from whom the property was taken; b) Make every effort before acquisition, in compliance with Article 4.4 of the 1995 UNIDROIT Convention, to ensure that any cultural property offered for purchase, donation, or any other transfer thereof, has clear title, c) Provide their directors, personnel, and volunteers with periodic training and educational sessions to raise awareness of illicit trade in cultural property and endeavor to ensure that the ICOM Code of Ethics for Museums is fully complied with;

And also,

6. Auction houses, museums and art dealers should accept for consignment, acquire or trade in cultural property only when they are satisfied that a valid title is held and should make public all available provenance-related information on cultural property;

7. Governmental organizations, non-governmental organizations, the general public and local communities, private research institutes, museums, libraries, international academic institutions etc. should continue their efforts to further promote the purpose and spirit of this Conference which has been held annually in the Republic of Korea, Greece, China, and Turkey since 2011, respectively, for prohibiting and preventing illicit trade in cultural property and promoting return or restitution of illicitly exported or stolen cultural property.

An imaginary conversation about Grosz v. MOMA

"Max Hermann-Neisse"

All rights reserved, Estate of George Grosz,

 licensed by VAGA, New York;

 Image courtesy of Museum of Modern Art

In the August 24, 2011, issue of the New York Times, Patricia Cohen wrote an insightful article about the ramifications of the Grosz v. MOMA case which has pitted a venerable cultural mecca of New York City against the family of one of the 20th century’s most celebrated social and cultural critics, Georg Grosz. As the case bumbles along in favor of the Museum of Modern Art, it is worth musing over a number of points raised by Patricia Cohen. The floor is open for commentary and critiques alike. For further details, please refer back to Patricia Cohen’s article:

Patricia Cohen: “Museums are breaking their own ethics codes and causing the U.S. government to break its international commitments by invoking our courts to resolve Holocaust-era art claims on technical grounds rather than on the merits,” said Jennifer Anglim Kreder, co-chairwoman of the American Society of International Law’s Interest Group on Cultural Heritage & the Arts.

American museums have an obligation not to acquire or come into the possession of stolen cultural property, especially when they are the beneficiary recipients of Federal tax breaks which allow them, among other things, to raise unlimited sums to better serve their public and their donors. Unless otherwise stated, the National Stolen Property Act (NSPA) remains the basic legal instrument by which one can order the seizure of stolen cultural property assuming one can prove beyond a doubt that the property is in fact stolen. For the past five years, the Federal government has successfully intervened in art ownership disputes through seizures of looted cultural items which have resulted in the restitution of those items to their rightful owners.

The US government has been playing with legal fire for decades by declining to apply its postwar international commitments to its own citizens by which property under its jurisdiction which is proven to have been stolen as a result of acts of duress, persecution, or other forms of discrimination during the Nazi era, should be returned to their rightful owners. To date, no one has sought to compel the Federal government to right those wrongs. Neither has anyone thought to challenge the Federal largess to American museums as a means of pressuring them into disgorging their looted cultural assets.

Patricia Cohen: The museum, which acquired the works in the 1950s, declined to comment because the case is being litigated. But it has maintained in court documents that, regardless of the timing issue, it has diligently researched the artworks’ provenance and has found no evidence that the works were looted by the Nazis or any basis for disputing their legitimate ownership.

Affidavits filed on behalf of the plaintiffs in Grosz v. MOMA show a pattern of deceit, distortion and withholding of key documents on the part of MOMA and its legal team. In other words, MOMA has not done its utmost to research the provenance of the works.

“Republican Automation”

All rights reserved, Estate of George Grosz,

licensed by VAGA, New York;

 Image courtesy of Museum of Modern Art

Patricia Cohen: Raymond J. Dowd, the Groszs’ lawyer, counters that the lower court considered inadmissible evidence and also failed to take into account a 1998 federal law that was intended to help Holocaust-era victims recover their assets.

Section 202 of The Holocaust Victims Redress Act (HVRA) of 13 February 1998 states the following:

“It is the sense of the Congress that consistent with the 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 the claimant during the period of Nazi rule and there is reasonable proof that the claimant is the rightful owner.” 

By definition, a “sense of” declaration by Congress is non-binding and merely reflects the fact that a majority in Congress shares this view, without going any further. Hence, it is a bit wrong-headed to state that the Act is there to help victims recover their assets. It exists to exert moral suasion on a government that refuses to become engaged in the act of restitution of looted cultural assets. The same would apply to the Washington Principles of December 1998 and to the Terezin Declaration of June 2009. Interestingly enough, the HVRA did not invoke the 1954 Hague Convention.

Patricia Cohen: The Grosz heirs say that Flechtheim was only temporarily caring for the three works and that he was forced to sell or abandon his holdings because of the climate of terror created by Hitler’s regime. The accompanying paper trail that shows bills of sale, liquidation papers and letters, they add, was later fabricated or distorted to mask illicit dealings.

The Grosz case hinges in part on the historical definition of a so-called forced sale, a commercial act that would not have occurred had circumstances been entirely different, in other words, had there not been a pervasive environment of anti-Jewish persecution and harassment sponsored by the National Socialist State. Or, put more simply, if Georg Grosz were alive today, he would have answered “no” to the question: “Mr. Grosz, would you have sold your works of art had the Nazis not persecuted and harassed you for what you are and who you are?”

Patricia Cohen: MOMA, which obtained the two oil paintings and the watercolor at different times in the early 1950s, has said it was unaware of any doubts about the chain of ownership. Grosz himself saw the portrait of Herrmann-Neisse hanging on the museum’s walls in 1953, and wrote to his brother-in-law, “Modern Museum exhibits a painting stolen from me (I am powerless against that) they bought it from someone, who stole it.” Grosz, who died in 1959, never contacted the museum about regaining possession, however.

Therein lies the rub. Did Georg Grosz know that he was within his rights to claim the painting once he saw it hanging on MOMA’s walls? Was he aware of statutory limits placed on claims for stolen property? How omniscient does a victim have to be in order to knock some commonsense into the insensitive souls of museum officials bent on safeguarding what they view to be rightfully theirs even if the historical evidence does not bear them out?

Patricia Cohen: During the Nazi regime about 100,000 artworks were looted from public and private collections, including forced sales.

That estimate is indefensible, uncorroborated, and historically rootless. There were at the very least 100,000 artworks forcibly removed from German-occupied France alone. Since there were 19 countries that were invaded, occupied, or otherwise under Axis control between 1933 and 1945, you can do the math.

Patricia Cohen: To address some of the issues such looting raised, the United States and more than 40 other nations adopted the 1998 Washington Conference Principles on Nazi-Confiscated Art, and the 2009 Terezin Declaration, which urge nations to decide claims “on the facts and merits” and to take historical circumstances into account when legal hurdles arise. American policymakers have frequently urged other countries to abide by these agreements.

Meanwhile, American policymakers have repeatedly refused to inject themselves into domestic ownership disputes involving cultural restitution claims, thus abandoning claimants to the formidable legal apparatus available to current possessors in the United States. Therein lies the failure of the Washington Conference of 1998 and all subsequent attempts at fostering greater understanding about looted art. How hypocritical can one be?

Patricia Cohen: In a keynote address at the Terezin conference, held in the Czech Republic, the leader of the United States delegation, Stuart E. Eizenstat, said he was concerned about the tendency to seek refuge in “technical defenses,” including the statutes of limitations.

Ambassador Eizenstat can express his many concerns for as long as he wishes but the truth remains that he does not lift a finger to apply his political weight on institutions like MOMA in the spirit of the Washington Conference of 1998 and the Holocaust-Era Assets Conference of June 2009 both of which he helped organize? Where are you, Ambassador Eizenstat, when claimants need you the most? Actions speak louder than words.

Patricia Cohen: Some lawyers who have represented MoMA and other museums in unrelated cases say that laws regarding time limits are not merely technical, but also speak to the question of whether it is possible to reconstruct an accurate historical record after a long lapse. Automatically giving claimants the benefit of the doubt can unfairly penalize honest and rightful owners, said Jo Backer Laird, a lawyer at Patterson, Belknap, Webb & Tyler, a New York firm that represents MoMA and other museums but is not currently involved in any restitution cases.

It is not in the interest of current possessors, especially institutional holders of looted cultural property, to conduct extensive, exhaustive research into the provenance of cultural objects in their collections. A recent and well-publicized restitution by the Boston Museum of Fine Arts clearly shows that, even if there are gaps in the ownership history of a painting, the critical mass of information pointing to ownership by a claimant is sufficient to incite the current possessor to return the claimed item rather than invoking hurtful, self-centered, and morally and ethically unjustifiable legal defenses in order to prevail as the current possessor.

We have not heard the last from the Grosz case. Alea jacta est...

How to profit from State-sanctioned plunder: the Entartete Kunst case

The Nazi government enacted on May 31, 1938, the ”Act on Confiscations of Degenerate Art“ (“Gesetz über Einziehung von Erzeugnissen entarteter Kunst“) in order to legitimize its domestic purge of all works of art not deemed suitable in the New National Socialist Aryan Germany. By 1942, according to an inventory compiled by the Reich Ministry for Cultural Enlightenment and Religion (Joseph Goebbels' purview) at least 16,000 so-called “degenerate”works of art were accounted for in museums and cultural institutions controlled by the Nazi government.

The Nazi government selected a handful of art dealers—Ferdinand Möller, Bernhard Böhmer, Karl Buchholz and Hildebrand Gurlitt—to do their bidding and get rid of these works on the art market—read, the international art market—in order to raise cash and cleanse the German cultural landscape once and for all.

Thyssen-Bornemisza Museum
Source: Wikipedia

Institutions like the Thyssen-Bornemisza Museum in Madrid have touted these gentlemen as “saviors” of Germany’s modernist art treasures, probably because the Museum owns a number of German Expressionist works that were "saved" by Gurlitt and Buchholz. Interesting. A rare instance where thieves and their acolytes are treated as heroes. Obviously, there’s room for everyone in the pantheon of Aat.

As one can readily imagine, the Nazi-ordered global recycling of "degenerate" art was the biggest cultural fire sale orchestrated by any standing government, legitimate or other, for which there could only be one word—opportunity! And, indeed, opportunity struck high throughout the ensuing decades, even after the fall of the Third Reich in early May 1945.

Alfred H. Barr, Jr.
Source: The Art Story

Fast forward to 1964—an unusual year in the international auction market because a large number of these ‘degenerate’ works are put up for sale and snatched up by private collectors and museums, including American institutions. This is not to say that American museums did not seize earlier opportunities to absorb at prices not even fit for a flea market, priceless works of art by 19th and 20th century masters. The Museum of Modern Art (MOMA) under the enlightened leadership of Alfred Barr cashed in on various spectacular sales of ‘degenerate’ works such as the 1939 Lucerne, Switzerland, sale at Theodore Fischer’s gallery, and many subsequent transactions through third parties which allowed Barr to absorb an untold number of those works into the collections of MOMA.

In 1964, two works by Wassily Kandinsky come up for sale at Sotheby’s London—“Zweierlei Rot” which Dr. Gurlitt had ‘acquired’ for not even 100 dollars and “Ruhe” which was handled by Moeller. Both works hailed from the Berlin Nationalgalerie. “Zweierlei Rot” ended up in a private collection, giving the previous owner a handsome profit, while “Ruhe” was picked up by the Guggenheim Foundation together with dozens of other works by Kandinsky, an event that earned a small outcry in the German-language press.

While the Allied powers had denounced all transactions and laws entered into and decreed by the Nazi government between 1933 and 1945 to be null and void, thus illegal, the Allied Control Council (ACC) which ruled over the zones of occupation in Germany decreed by 1948 that the purging of German State cultural institutions had constitued a legitimate State-sanctioned act. One has to scratch one’s head in wonder at this ruling, justified by the Council by the fact that the Nazi government had not engaged in an overt act of discriminatory policy. Or could it be that, in order to avoid a wholesale purge and overhaul of the art market, it was best to let bygones be bygones? After all, if the ACC had declared the Nazi war against “degenerate” art to be illegal and consistent with its racial, anti-Semitic, xenophobic ideology, the acquisition of more than 16,000 works of art by institutions and individuals worldwide would have been subject to a massive “recall” and German state institutions placed in the awkward position of having to reclaim what they had cleansed, willingly or unwillingly.

The winners? 

According to museums and art world denizens, the general public is the winner. In the view of those who strive for ethical behavior in the global art market, there can be only one winner―the art market.

Analysis of an address by Ambassador Stuart E. Eizenstat at Prague in June 2009

On June 27, 2009, US Ambassador Stuart E. Eizenstat spoke the following words to the assembled participants at the Prague Holocaust Era Assets Conference:

“Like the Holocaust itself, the efficiency, brutality, and scale of Nazi art theft was unprecedented in history. Experts have estimated that as many as 600,000 paintings were stolen, of which more than 100,000 are still missing. When furniture, china, rare books, coins, and items of the decorative arts are included, the numbers swell into the millions.

At the Washington Conference, we obtained a consensus from 44 countries on a voluntary set of Principles on Nazi-Confiscated Art, which profoundly changed the world of art. The guidelines have important moral authority. They called on museums, galleries, and auction houses to cooperate in tracing looted art through stringent research into the provenance of their collections. Leeway was to be given in accepting claims. An international effort was to be made to publish information about provenance research. A system of alternative dispute resolution was to be considered to prevent art claims from turning into protracted legal battles.

Since none of these principles was legally binding, one may legitimately ask whether anything has really changed. The answer is unequivocally yes.

Major auction houses conduct thorough research on artworks that they bring to market, museums examine the provenance of any prospective purchases carefully; and private collectors consider the prior history of paintings they have under consideration. Some 164 contributing U.S. art museums have developed a creative web “search engine,” with over 27,000 works posted, which allows potential owners of Nazi-looted art to input their claim into one place, and have it considered by all the museums linked to the search engine. And hundreds of artworks have been returned to their rightful owners.”

Interestingly enough, the estimated number of looted paintings still to be recovered has now increased significantly since the December 1998 Washington Conference on Holocaust-Era Looted Assets, from 125,000 to 600,000, and, if one adds all sorts of other things into the mix, we might reach a figure into the millions. Progress has indeed been made.

Ambassador Eizenstat truly believes that something has changed since late 1998 as a result of the enactment of the Washington Principles. He is correct to point out that major auction houses conduct provenance research on works that they offer for sale. At this point, the expression “major” refers to only two houses: Christie’s and Sotheby’s. No one has yet asked DePury, Bonham’s, Butterfield’s, Artcurial, Lempertz, and hundreds of other auction houses if they are applying themselves as dutifully as the two leading global auction houses in order to ensure that stolen art does not come to market through their good offices. In other words, the global private art market is like a gigantic sieve with thousands of holes in the mesh. Christie’s and Sotheby’s are able to plug their particular part of the sieve while looted works are passing through all of the others. Where is the policy that plugs those other holes in the sieve?

Ambassador Eizenstat then refers to the “creative web ‘search engine’” developed by the museum associations in the United States which lists more than 27,000 objects with uncertain or incomplete provenances. Granted, the site has existed now for some time under the odd acronym of NEPIP. However, since the Museum associations do not release any statistics on how many ‘hits’ have resulted from consulting NEPIP whereby potential claimants found their missing cultural possessions there, it is difficult to imagine how there have been “hundreds of artworks returned to their rightful owners.” The United States has, by far, one of the worst track records in the world when it comes to restitution of looted cultural property. Perhaps, Ambassador Eizenstat was alluding to the repatriation of looted antiquities by American museums which, in some cases, have consisted of wheelbarrows full of illegally-excavated objects. Truthfully, it is difficult to count to 30 when it comes to the number of artworks actually physically restituted by US museums to their rightful owners. There is also the likelihood that, unbeknownst to us all, hundreds of objects have been the subject of “settlements” reached by US museums whereby claimants have been obliged to accept some form of financial compensation in return for allowing title to their stolen object to remain with the current possessor. Clarity is needed here.

In sum, after more than a decade since the Washington Conference of December 1998, the only notable accomplishment that Ambassador Eizenstat should report is that the two leading global auction houses which are both based in New York—Christie’s and Sotheby’s—are enforcing well-hewn internal mechanisms to identify and prevent looted art from reaching the open market and they are working diligently to withdraw suspicious items from their sales.

To date, there are no central looted art databases to be consulted, there are no international mechanisms put into place by which art ownership disputes can be resolved to everyone’s satisfaction, and that includes both claimants and current possessors. There have not been significant changes in the laws of nations where stolen objects are currently located, which would permit swift justice to be meted for an unspeakable theft tied to an unspeakable crime of genocide. There are no institutional efforts put into motion which promote historical research and documentation into the losses of countless objets d’art and their recycling during and after the war through private and public hands where such research would be of immense benefit to the public, as well as to specialists in the art trade, art history, museum science, international law, and related fields. To date, there is an absence of coherent public policy pertaining to the location, handling, and return of looted cultural property in all countries where such property is located, despite the 1954 Hague Convention and other international pronunciamentos that provide ethical and legal guidance to effect such returns. In fact, the tide has even turned against claimants as museums, private owners and even national governments respond more assertively to requests for restitution by using a complex array of offensive tools made available to them by the legal system of their respective countries which is by definition designed to protect the current possessor and to eliminate long-standing claims for stolen objects, regardless of the circumstances under which the objects were stolen.

Progress is elusive. However, in order to avoid the label of “Debbie Downer” (a true Americanism depicting a chronically sour individual who can't see any light in any situation), one should also applaud advancements in the critical understanding of Nazi plunder and the increased access—everything is relative of course!—to archival materials. Much has been done in this growing field since 1998, which isn’t saying much, but there is progress. The recent announcement of an “international research portal” which brings together resources from a dozen or so State archives in North America and Europe is a major step forward, albeit a limited one since the portal consists mostly of a web-based guide to building a coherent research plan. Last but not least, we are keeping our fingers crossed that the European Shoah Legacy Institute (ESLI), established as a result of the June 2009 Prague Holocaust Era Assets Conference will provide us all with some badly-needed leadership in an area that has been so sorely neglected for so long—the documentation, identification, location, and restitution of cultural assets looted during the Third Reich.