Restitution and the ‘return of beauty’ – afterthoughts

Posted on: February 4, 2022 by

On Wednesday evening, I spoke on an online panel organised by the Universities of Bonn and Tel Aviv entitled The Return of Beauty: Restitution of Nazi-Looted Art in Comparative Perspectives. I was asked to introduce the topic of ‘post-colonial’ claims for the return of cultural objects as a point of comparison with claims for the return of art spoliated during Nazi rule in Europe. In order to fit within my 20-minute time slot, I tried to do this in a very general manner by considering common approaches to both matters. This involved first considering the legal hurdles that exist for claims brought through the domestic court systems in either context, then looking at ethical approaches and asking what ‘ethical decision-making’ might consist of. The intention was to suggest how those making decisions in relation to objects removed during the colonial period (whether they be museums, government ministries, legislatures or administrative committees) can ensure that the decisions reached are ethically sound.

The principal requirements that should underpin any ethical decision are, in my view, the following: (1) the legitimacy of the decision-making body, (2) the procedural fairness offered to claimants and (3) the consideration by the decision-makers of all relevant factors. The first of these, legitimacy, is essential because without it, neither side will respect the outcome, nor indeed will members of the public. The basis upon which legitimacy rests is the composition of the decision-making body itself and whether it holds the trust of the relevant sector. There is interesting theory on ‘legitimacy by procedure’ from the German philosopher Niklas Luhmann that can further supplement our understanding of this feature, and I thank Matthias Weller of Bonn University for alerting me to Luhmann’s enrichening work.

The second requirement is what lawyer’s call ‘procedural fairness’. This is, by its name alone, limited to the process which ultimately leads to a decision, rather than to the substance of that decision. Norman Palmer wrote about this in his contribution to Evelien Campfens’ edited book Fair and Just Solutions: Alternatives to Litigation in Nazi-looted Art Disputes. The content of procedural fairness is considerable. It includes affording the claimant the ability to put forward its case fully and not to be precluded by rules that exclude evidence like those in court: for instance oral evidence passed down from a family member or through a cultural community. This right extends to the full ability to respond to counter-arguments and counter-evidence. A similar ability needs to be afforded to the other side. However if the decision-maker is the board or an internal committee of a museum in possession of the claimed item, then the fairness element really must prioritise the claimant in order for the claimant not to feel excluded or outnumbered. There are other elements of procedural fairness that need to be included, such as having clear and transparent steps to follow when making a claim and ensuring the process is participatory and collaborative insofar as possible.

The third essential requirement for an ethical decision is that the ultimate decision takes into account all factors relevant to the item and its provenance, which should be set out in a published report. This means that all evidence introduced must be given careful consideration and be referred to in the final report. If this is not done, the legitimacy of the body (point (1) above) will also be undermined. It nevertheless remains difficult to be prescriptive about outcomes. If the body is comprised of a widely respected and balanced membership, then in a sense we must have faith that, having considered all the factors, its conclusion will be an ethical one. Recall that ethics is a shared set of moral principles that motivates the individual conscience. Any dictionary will tell you that. Ethical decisions can be supported by guidelines (such as those offered by/for the museum sector), but they can never be predicted as such. In that way, ethical outcomes will vary and we have to live with that. They are very different from legal outcomes, which can be appealed until the ‘right’ decision is reached.

I had broadly set out what is above during Wednesday’s talk with the hope that it could provide some food for thought for those working in this field, or for anyone who has an interest in these matters. In a sense what I have provided is an attempt to find commonalities in decision-making across the two areas. The result of this might be that we can learn from the past 20 years of ‘ethical’ decision-making in the context of Nazi-looted art in order to ensure that ‘fair and just’ solutions can be reached in the other context. At least, that’s the hope.

I had also wanted to cover another aspect in my talk. This related to the attempts at analogising the features of claims across the two areas. Can they be compared? Are there features in Nazi-looted art claims that can also be found in claims (real or potential) for material taken during the colonial period? In order to answer this, we will need to understand those constituent features better. But I fear I may need another blog post to do that. So watch this space, as I hope to have something up over the next while. In the meantime, I would be happy to have your insights and questions through social media: @artlawalex on twitter or on LinkedIn.

Wednesday’s talk was the culmination of a semester-long course entitled ‘Nazi-looted art: Law and provenance research’, a special collaboration between the Rheinische Friedrich-Wilhelms-Universität Bonn, funded by its programme of excellency, and Tel Aviv University through the Minerva Center for Human Rights.