36 No. 69 JUSTICE Refugee’s Freedom of Choice Those who assert justified claims surrounding the return of art works are nevertheless often confronted with significant and challenging hurdles during court proceedings. These hurdles are introduced by decontextualising the circumstances of a single story, so that isolated personal decisions are presented as if they were examples of normal everyday actions, and one consecutive course of action. Hans Erich Emden, a German Jew, was forced to flee to Chile to escape Nazi persecution. His new life as a refugee in South America was his only course of action, after being stripped of his German citizenship and being refused a residence and a work permit in Switzerland where his father held a Swiss passport. To obtain capital for his new life in South America, he was forced to sell his artwork, as explained by an experienced provenance researcher in a court proceeding to reclaim the art.1 A question that arises from cases like this is whether the sale of art under duress should be considered a forced sale, almost equivalent to expropriation and therefore reversible, or a sale freely made that cannot be reversed. 1998: Evaluating the Restitution Claims Following an Extended Period of Silence In 1998, representatives of 44 governments, twelve NGOs and the Vatican met in Washington to discuss what should happen regarding works of art stolen from Jews by Nazis. The original idea of developing binding norms had failed. To achieve a declaration, non-binding principles were passed – prompted by the Swiss – that recognized the different legal systems of the signatory states. In the declaration, the states are charged with integrating these principles into their own national legal systems.2 Since then, the non-binding nature of these principles has been seen as an advantage for handling this complicated topic. The practice of restitution and material compensation for cultural assets confiscated and looted through Nazi persecution since the end of the war should, however, be sufficient reason for introducing binding norms that deviate expressly from the applicable principles of civil law. As this has not happened to date, the number of “just and fair solutions” since the Washington Principles of 1998 is marginal relative to the number of cultural assets for which searches have been initiated. The Original Idea of the Allies Concerning Restitution During and After WWII Many studies that focus on restitution begin with the Washington Declaration of 1998, and in doing so they fail to recognize that it is based on considerations, requirements and definitions that go back to the years 1943-1947. The Inter-Allied Declaration Against Acts of Dispossession Committed in Territories Under Enemy Occupation or Control, also known as the London Declaration of 1943, states that the Allied powers reserve the right to declare the trading in and acquisition of cultural assets to be illegal. It can be asked whether this relates to the sale of everything or just to stolen goods. When WWII ended, attempts were made to counteract the redistribution of private assets by devaluing this type of “expropriation.” However, issues arose in trying to define what type of assets were covered by this policy and what expropriation of this kind means. Numerous problems emerged in the practical implementation of this policy, as the court findings required that this type of claim could only be asserted if the principles and prescriptions of general civil law were suspended. According to a report by the U.S. Department of State, there were no historical models outlining legal interventions addressing the ownership of private property 25 Years of the Washington Principles on Nazi-Confiscated Art A Olaf S. Ossmann 1. “In fact, these sales by Hans Erich allowed him to get a hold of capital for his new life in South America.” Expert Report of Laurie A. Stein, Sept. 20, 2021, U.S. District Court Southern District of New York, Civil Action No. 19-10155-RA-KHP. 2. U.S. Department of State, “Washington Conference Principles on Nazi-Confiscated Art” (December 3, 1998), available at https://www.state.gov/washingtonconference-principles-on-nazi-confiscated-art/
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