When is “just and fair” fair and just?

by Marc Masurovsky

(updated on 5 July 2025)

It is difficult to pin down precisely the genesis of the concept known as “fair and just” or “just and fair” solution in matters pertaining to the restitution of art objects looted during the Holocaust. Who and when are almost impossible to trace.

A valid starting point is principle #8 of the “Washington Conference Principles on Nazi-confiscated art”. The “Washington Principles” were passed on December 3, 1998 at the close of the Washington Conference on Holocaust-era Assets.


“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."

Two years later, on October 5, 2000, a declaration came out of an international forum on Holocaust issues held in Vilnius, Lithuania, which placed heavy emphasis on the search for fair and just solutions “to the return” of looted art and cultural property. It went a bit further than the Washington conference without getting into any specifics, diplomatie oblige, as to what would constitute a just and fair solution to a claim for restitution. Forum participants did ask that “every reasonable effort be undertaken" to “achieve the restitution” of looted cultural assets. Hence restitution {again, without being properly defined] was invoked in the same breath as “just and fair solution.”

Eleven years after the Washington Conference of December 1998, a similar conclave of 40 odd nations and international NGOs gathered in Prague under the auspices of the hosting government of the Czech Republic. The International Conference on Holocaust-Era Assets issued a declaration, called the Terezin Declaration on June 30, 2009. In it, one can find multiple references to “just and fair solutions” without understanding at all what they are and how to achieve them. They do stipulate, however, that the Washington Conference of December 1998 established the moral (and non-binding) principle whereby looted art and cultural property should be “returned to victims or their heirs in a manner consistent with national laws and regulations [emphasis added] as well as international obligations, in order to achieve a just and fair solution.” Unless I am completely mixed up here, I read this as meaning that the restitution of looted cultural property achieves a “just and fair solution.”

In the years following the 1998 conference in Washington, DC, where the Principles were formulated, the tendency was to sharpen the link between restitution and “just and fair” or “fair and just” solutions. And yet….the word “restitution” was not defined in these declarations. If it was to mean the physical return of the looted object to the rightful owner and thereby transfer of legal title away from the current possessor to the rightful owner, many art market players like auction houses and museums, as well as governments, have violated the principle of what is just and fair by insisting that “just and fair” in all likelihood means upholding the good faith of the current possessor and asking—no, convincing—the claimant that financial compensation of some sort or another is the best result that can be achieved in the spirit of the Washington Principles of 1998. Best to invoke the trinity of Washington, Vilnius and Terezin in order to enshrine the physical return of the object.

Is that really what was meant or inferred at Vilnius in 2000 and at Prague in 2009? The answer is inconclusive, because most of the drafters and endorsers of these declarations were well aware that “national laws and regulations” would interfere with the actual physical restitution of the claimed object, especially in areas where the Idol of Good Faith rules all.

Hence, the apparent contradiction between settlements and the various declarations of Washington, Vilnius and Terezin disappears by stressing that the return of the object should be consistent with national laws and regulations. The emphasis of "fair and just" shifts in favor of the rights of the current possessor at the expense of those of the claimant.




"Dedham from Longham", by John Constable

An interesting twist to the Washington Principles involves a painting by John Constable being claimed by Alain Monteagle, representative of the Jaffe family’s restitution claim. The painting is presently located in the Fine Arts Museum of la Chaux de Fonds which is in the canton of Neuchatel in the French-speaking part of Switzerland. Historically, the Swiss federal government has always deferred to local governments’ discretion in the way that they manage or dispose of their cultural assets. If one should apply to the letter the principles enshrined in Washington and reiterated in Vilnius and Terezin, the museum at La Chaux de Fonds, which is municipal, should return the painting to Mr. Monteagle. However, if the return is subject to the “national laws and regulations” of Switzerland and the canton of Neuchatel, as well as the municipality of La Chaux de Fonds, Mr. Monteagle does not stand a chance, because civil law in Switzerland worships the good faith of the current possessor and no foreigner can come into Switzerland and claim what he/she feels is his/her rightful property, at least not since 1949, with a notable exception last year. At least, that is the impression that we are left with, if history serves as a valid reference point.




La Chaux de Fonds 

Interestingly, in a 3-page report issued in January 2014, the Swiss Federal Office of Culture commented that “just and fair solutions must be sought—both when it has been possible to trace the victims and when identification has proved impossible.”

Hence, the principles of Washington, Vilnius and Terezin are not helpful in the real world and, more often than not, municipal governments and their national representatives heap scorn on them so as to safeguard their “cultural property.” If Mr. Monteagle wants his painting back, he has to wage total war against the Swiss government, the city council of La Chaux de Fonds which has oversight of its fine arts museum and the cantonal authorities in Neufchatel. To be successful, the battle for restitution must involve all aspects of civil society and should be waged inside and outside the legal system in order to "achieve a just and fair solution" consistent with Washington, Vilnius and Terezin.

Update of 5 July 2025

Since 1998, the concept of "Just and Fair" as applied to the resolution of Holocaust-era claims for Nazi looted art (encompassing losses suffered from the advent of Hitler to power on 30 January 1933 to the unconditional surrender of the Third Reich on 9 May 1945) has been embraced by governments, lawmakers, auction houses, museums (public and private), dealers and collectors, and many lawyers involved in looted art cases. It has become what lawyers and lawmakers describe as "soft law."

When "just and fair solutions" are invoked, they pave the way for a financial settlement allowing the current possessor to explain why it is not fair and just to them to relinquish the claimed object to the heirs of the victim who lost them. Moreover, these solutions undermine our understanding of the trauma of duress as experienced by those who lost their cultural goods as well as the rest of their belongings and assets.

As a historical footnote, the concept of just and fair was wholly concocted by Ambassador Stuart Eizenstat, organizer of the 1998 Washington Conference on Holocaust-era Assets and the US Government's chief negotiator and diplomat on matters dealing with reparations for Holocaust victims and their families. The American Alliance of Museums (AAM)--at the time known as the American Association of Museums--played a role in guiding Ambassador Eizenstat to formulate this concept which ended up being a gift to the class of current possessors at the expense of the interests of the claimants in their quest to obtain restitution (the physical return of their property).

Is it fair to ask whether Ambassador Eizenstat and his colleagues in major Jewish organizations involved in Holocaust reparations ever thought to sit down with claimants and restitution advocates about the implications of a "just and fair" approach to their request for restitution?

As for the Swiss government, it is on the brink of creating a Swiss commission inspired by those already in place in the United Kingdom, the Netherlands, France, Germany and Austria.

Provenance was optional at 2015 TEFAF in Maastricht

by Angelina Giovani

The 28th edition of the European Fine Arts Fair, TEFAF, closed its doors on March 22, 2015, in Maastricht. It welcomed 75,000 visitors and collectors from 65 countries. It took place at Maastricht’s main convention venue, the MECC, which was splendidly decorated with floral assemblages, bringing together a total of 136,000 flowers. For those of you who have never been to a fair of this magnitude or never had a similar experience, it felt like fragments of history on parade.

TEFAF is where you go to view the finest works of art outside of museums. It offers you the possibility to walk away with a Picasso, a Rembrandt, or whatever you can afford. Almost all prices are available upon request and cannot be found on tags accompanying the images. One definitely needs more than just a day of wandering through the fair to get a feel for what really goes on. It is overwhelming and fascinating at the same time.

In most cases very little information accompanies the works of art, such as the name of the artist and the date of creation. In the instance where either of the above is missing, they are replaced with school and approximate date.

Provenance information is lacking in most of the 109 fine arts stands, including those in the paintings section color-coded in green and the Modern section in purple. Antiquities, marked in blue, are not included in the statistics below. A cursory study into the kind and amount of provenance included in the 59 stands of the Paintings area highlighted five categories in which to fit provenance information:

provenance on the wall,
provenance in the catalogue,
provenance in the gallery book,
partial provenance and
no provenance.

33 of the 59 painting stands included provenance information on the wall, next to the relevant work of art.

Out of the remaining 26 stands, 11 had no provenance information whatsoever, neither on display, nor in the catalogues.

Not every stand had catalogues. Most of those that did have one handed them out for free. Others were available for purchase at an average price of 20-25 euros.

10 stands offered partial provenance, meaning that there was ownership history only for part of the collection.

4 out of 59 stands confined their provenance information exclusively to the exhibition catalogue and only 1 of them was limited to the gallery book, which is not for sale.

The Modern section, in purple, is a different story. The provenance issue here is less acute because of the nature of the art. Although there were works by Ernst, Kokoschka, Kirchner, Klee, and an overwhelming number of works by Picasso and Matisse, most of the art was created in the post-1945 period, making the lack of provenance information barely justifiable.

Out of 50 modern stands only 6 had provenances on the wall and only 2 included partial provenance information. One of the dealers at the fair explained that the choice of what goes on the tag, is driven by aesthetics. “We like to keep our space clean and minimal, without a lot of text to distract the visitors from the actual pictures”. The Art Loss Register apparently vets all the works on display at each TEFAF but if history is any indicator, we should not hold our breath. The effort to document the ownership history of objects on display should be institutional and individual.

I looked for Caspar Netscher’s “Woman Feeding a Parrot” [Frau mit Papagei, or Lady with a Parrot] having become familiar with it during ESLI’s Provenance Research Training Program (PRTP) in Vilnius. I felt a sense of relief upon spotting it. 

"Lady with a Parrot" at Maastricht

HA 9-Frau mit Papagei

This painting had once been the property of a Belgian Jewish family, Hugo and Elizabeth Andriesse, who had to flee Belgium before the German invasion of April-May 1940. Recently restituted, the heirs—several American charities—decided to sell the painting through Christie’s in New York. Barely a year went by and the new owner, in an apparent attempt to cash in on the market highs, offered it for sale at Maastricht. Hope springs eternal, especially where millions of euros are involved.

There is something about standing in front of a work of art you know a lot about. But then I looked at the wall. The label accompanying the painting only contained basic information, even though unlike most works, it included the price, at € 6,700,000. But it somehow felt ‘naked’, without a story attached to it. The full provenance, sure enough, was included in the catalogue, which you had to ask for, since it was not on display. The painting is nr. 13 on the catalogue and the text retraced the Andriesse painting’s journey from Brussels, the ERR’s seizure of the work, its transfer to the Jeu de Paume in Paris, before going to Goering, the Bunker Kurfürst and leading up to the Wuppertal museum until it agreed to restitute it to the Andriesse heirs, without putting up as much as a whimper in 2014. Strangely, the work is not included in the fair’s sold highlights: did it actually sell?

This being said, melancholy sets in when one stands in front of a work of art that you admire, and the thought hits you that it could be the last time you will ever see it up close, before it ends up in someone’s private collection, probably in some faraway land.

Provenance research: what to do?

by Marc Masurovsky

The fault lines around contrasting views and understandings of provenance research resurfaced during the international conference on looted art that took place on February 20 and 21, 2015, at Columbia University entitled “Ghosts of the Past: Nazi looted art and its legacies”.

The fissures are brought about as a result of the legal implications of provenance research.

In my view, a provenance is a document that outlines the history of ownership or possession of an object from the time of its creation to the present. The older the object, the more likely it will be difficult to account for every movement and place where the object was situated once it left the studio of its maker. But as you all well know, even so-called modern works can have elusive provenances such as “private collection, Zurich”.

The contrast in approach, in my view, stems from the fact that one school, mostly articulated by museum professionals, which we will refer to as “traditional” is not necessarily interested in injecting economic, political and social history into the documentation of the fate of an object, especially as it pertains to the 1933-1945 period. For some strange reason, that entire period remains a taboo subject, difficult to express even in the literature that museums and galleries develop around the objects that they display. This same school also argues that one will never know exactly what happened to an object, maintaining that there is no concrete evidence that something “bad” happened to the owner of the object and, even it did, it might not have affected the legal title to that object. After all, the object might have been sold “legally” and we just don’t know about it. Hence we can never ascertain that the object was in fact misappropriated for racial or political reasons, and therefore should not be restituted to its purportedly rightful owner. This view remains the favorite weapon of individuals who work for those who are best described as the “current possessors” of the object being claimed, namely cultural institutions—public and private.

The other school to which this writer belongs argues that context plays a very important role in determining the fate of an object. One might call it the “organic” school, for lack of a better word. It argues that the object, the place where it is and the person in whose possession it is, represent the three cardinal points around which the history of the object is articulated against the matrix of history which evolves over time and space. Put simply, an object that changes hands in Munich, Germany, and which belonged to a person of the Jewish faith may be moving around for reasons compelled by the change of regime in Germany on January 30, 1933, thus signaling a potentially violent and illegal transfer of ownership after Hitler’s rise to power.

A research training program takes on vastly different features if it follows the “organic” school or the “traditional” school that warrants that the actual fate of an object will never be exactly known, raising the possibility that there could be a document out there that could prove that nothing untoward occurred and the object changed hands legally even in the context of racial and political persecution and genocide.

You would be surprised, but this “traditional” school of thought has led to negative outcomes for claimants more often than not, most notably in the Grosz v. MoMA case and in the case opposing the heirs of Martha Nathan to the Toledo Art Museum and the Detroit Institute of Art. 

When we think about establishing provenance research training programs in colleges and universities, we realize that some schools might adopt one or the other approach. A balanced program would offer both approaches to future practitioners, advising them of the pitfalls and benefits inherent to either approach.

Some participants and speakers at the Columbia Conference (see above) were very adamant about promoting their own views of how provenance research should be conducted, whether “traditional” or “organic” which is a good thing because it gave those in attendance an opportunity to weigh both in their own minds.

Any museum-guided provenance research training program will likely promote the “traditional” view that provenance research is first and foremost about documenting the itinerary of an object from creation to the present day, with history being relegated to a back seat.

Any provenance research training program guided by the notion that it is essential for the provenance to document who the actual owner of the object is promotes the “organic” view and will assign greater weight to history and the environment in which the object evolved, beyond the narrow confines of conventional art history.

These contrasting views have become an integral part of the landscape of provenance research, influenced and skewed by decades of litigation and legal wrangling between current possessors—in most cases, museums and galleries—and claimants.

The geography of “traditional” vs. “organic”

Where do we find “traditional” views as opposed to “organic” views of provenance research?

The “traditional” approach is mostly upheld in the hallowed halls of cultural institutions of a certain size located in large metropolitan centers. It can also be found among those who teach in museum studies programs and art history programs. One can even argue that the “traditional” view suffuses the curriculum of these academic programs that train future curators, art historians and other cultural professionals.

The “organic” view, strangely enough, finds its strongest advocates among archaeologists and cultural heritage specialists who take seriously the matrix from which objects are extracted. They are joined by those who research the fate and history of objects lost by claimants and their families. Some government officials, mostly in Europe, have eased their way into an “organic” view of provenance research, especially in the United Kingdom, France, the Netherlands, Germany and Austria.

The future of provenance research

There is no game plan right now. The most important next step is to institute formalized academic offerings in colleges and universities that introduce students to both methodologies—“traditional” and “organic”—as well as in specialized workshops organized by non-profit organizations.

The European Shoah Legacy Institute (ESLI) offered a Provenance Research Training Program (PRTP) from 2012 to 2015 through a series of five workshops staged in five different cities—Magdeburg, Germany; Zagreb, Croatia; Vilnius, Lithuania; Athens, Greece; and Rome, Italy. Both approaches were offered to participants although most workshops tended to lean towards an “organic” view of provenance.

By contrast, the Washington-based American Alliance of Museums (AAM) and the Association of Art Museum Directors (AAMD) have offered half-day and day-long seminars characterized as workshops in which they introduced curators, librarians, archivists and art historians to the mechanics of working with objects and documenting their history. These programs fit into the “traditional” mold and will likely continue. Likewise, the Smithsonian Museums appear to be thinking about developing some kind of “traditional” provenance research training program of their own.

Proposals abound about how to produce a more structured approach to training. Some efforts are taking shape in France. Provenance research is now being introduced to universities in select cities.  The Free University of Berlin continues to offer a curriculum on “degenerate art” which tends to steer away from controversy and thus finds comfort in a more “traditional” approach to provenance research. This is perhaps due to the fact that funding comes from the government. On the other hand, in Munich, the Zentral Institut für Kunstgeschichte (Central Institute for Art History) promotes through its research projects a more “organic” vision of provenance research that gives extra weight to the mechanics of the Third Reich, the relationships of power and interest between various groups in the art world, into the understanding of an object’s pathway through the 1933-1945 period. These relationships and “interests” , it is argued, shape the fate of the object.

There is talk about asking the European Union to establish a Europe-wide entity with EU funds that would coordinate research into the history of objects under review for possible taint of looting or misappropriation. The idea makes eminent sense since national governments have skirted the issue rather successfully for the past 70 years. It might just require such a supranational effort to compel provenance research and training of practitioners. For such an effort to even get off the ground, entities and individuals with an “interest” in these matters of restitution, looted art, provenance research, will have to work together, coalesce their strengths and assets in order to lobby successfully for the creation of a funded unit at the EU level.

And still others argue that the only way to provide training is through some sort of international association of provenance researchers. According to this position, this association (which does not yet exist) will be responsible for coordinating at the national and international level all activities pertaining to provenance research and training. For this to happen, national chapters have to be established and more importantly, a clear definition of provenance research has to be adopted. If we follow this duality of “traditional” vs. “organic”, will the association try and reconcile these two approaches or will it favor one over the other? Who will make that determination? Without a clear understanding of what provenance research is, how can such an association see the light of day?

Maybe several associations are required if the two approaches cannot be reconciled. That might not be the worst thing to do. The only organization of provenance researchers that exist today is in Germany, the Arbeitsstelle für provenienzforschung (AfP) and includes mostly German researchers who are for the most part working for municipal, regional or federal museums and cultural institutions. Expand this idea and we are talking about fundamental different outcomes and approaches shaped by the employer. In most of Europe, the employer is the government. In the United States, the main employer is a private non-profit or profit-making cultural institutions, with the exception of municipal, State and Federal museums. Hence, an international association would become a cacophony of conflicting interests, because some researchers would be government civil servants, others would be working for the private art market, while others would be working for claimants and advocacy groups.

Define your terms

Before anything concrete can happen to transform provenance research into an internationally-recognized profession with its requirements, methods and approaches, licensure or certification procedures, we all must be clear about exactly what provenance research really is, and how it is practiced. Failing that, there is nothing to talk about. Instead of an association and its bureaucratic pitfalls, let us for now establish a strong global network of individuals and entities interested in the history of ownership of artistic, cultural and ritual objects, a network that would be inclusive and not exclusive, one with a maximalist understanding of the idea of research. That approach might help shape the contours of a generic definition of provenance research on which everyone could agree without feeling as if they betrayed their principles and ideals.