JUSTICE - No. 68

37 Summer 2022 (A) regarding provenance research”; and (B) a new framework law defining a more comprehensive process to recover looted assets. A. Provenance Research The New Law, as well as the Gimpel case, provide further evidence as to the importance of provenance research. The Cultural Affairs Committee of the French Senate issued a report on January 16, 2013, entitled “Looted or unclear cultural work or of unclear background and public museums: assessment and perspectives,”15 stressing the necessity for France to adopt a more proactive approach regarding provenance research. The French Senate proposed: n a systematic research provenance where an artwork presents strong presumptions or a certainty of spoliation; n clarification of the history of artwork held in custody by museums; n a systematic provenance research on all artwork which entered public collections after 1933; n preparation of a complete inventory of the archives relating to looted artworks including those of the Ministry of Foreign Affairs, and to make them available online; n better visibility and accessibility of the MNR works. Several public museums, among them the Louvre and the Musée d’Orsay, have begun to study the history of the artworks entered in their collections between 1933 and 1945. The Louvre, in particular, entered into a partnership with Sotheby’s on provenance research on works acquired by the museum between 1933 and 1945. Efforts should be taken to increase provenance research, especially in museums, as provenance research is the cornerstone of restitution. However, this requires financial and training efforts, dedicated staff and resources, as well as a specific budget. B. The Question of the Adoption of a Framework Law The question of whether France should adopt a framework law to facilitate restitutions must be reassessed. The requirement to have a dedicated law voted for each restitution, due to the inalienability of works belonging to national collections, in practice, is an extremely long and tedious process. It is contrary to the spirit of the Washington principles by which steps should be “taken expeditiously to achieve a just and fair solution.” A general law facilitating future restitutions would abrogate the need for multiple, distinct laws. Such a law would terminate the need to undertake legislative procedures, which in the past led to years of unimaginable suffering for the despoiled families. The implementation of such an international law, however, raises the question of the criteria by which artworks would be restituted. Indeed, the cases of looted artworks can be very diverse: n Not all spoliations took place in France. Chagall’s Le Père was looted in Poland – and French law was not applicable to its restitution, raising the question: would a general law apply in this case? n Though some artwork was confiscated, other works of art were sold; should a distinction be made? The Court of Appeal ruling in the Gimpel case in Paris16 makes no distinction; it considered that given the circumstances, the transactions entered into during the occupation by a Jew should be viewed as forced sales made under duress and as such, should be considered null and void. The rationale of the Court of Appeal deserves to be commended since many families had to sell their artwork to save their lives. The sales made under these circumstances were thus non-voluntary. Opponents to restitution often claim that there would be no spoliation when the artwork was sold by its Jewish owner, at least from a legal standpoint. This argument should, in our opinion, be rejected as the conditions under which Jews had to sell their artworks cannot be set aside. Those sales should be viewed as forced sales made under duress, and this should render them null and void. n Some artwork was looted during the Occupation, but other work was looted before; which period would be taken into account? n Proof of spoliation: Considering that Jews fled for their life and left all their belongings behind, what level of evidence can they be expected to provide? n Provision of proof of the initial ownership of a painting and demonstrating that there is no other, similar painting can also present a challenge. Should we think about a dedicated service to help families to establish heirship in their claim and assist them with further expertise? Establishing criteria on the basis upon which spoliation must be recognized and restitution granted is not an easy task, as each case is specific and will inevitably include 15. Corinne Bouchoux Œuvres culturelles spoliées ou au passé flou et musées publics: bilan et perspectives, Report of the Senate (Jan. 16, 2013). 16. Paris Court of Appeal, Sept. 30, 2020, no. 19/18087.

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