38 No. 69 JUSTICE applicants found themselves following years of persecution and flight. Moreover, there were additional requisites that were required to allow for the return of art works. First, the applicant needed to locate the work of art, as the jurisdiction of the courts, and the applicable law which were assigned to one of the Allied forces, depended on this. If the supposed owner denied that the asset in question was at the alleged location, then the claim was null and void. The claimant’s ability to obtain information was very limited. Art dealers lacked any willingness to cooperate, and the public administrations and museums often denied possession of said artworks or maintained that they had been lost or destroyed. An End to the Post-war Efforts and the Enforceability of Claims Although a considerable number or works of art were returned to their original owners or their countries of origin thanks to the “Monuments Fine Art and Archives (MFAA) Program” of the “Central Collecting Points,” only a small percentage of looted artwork was returned. Today, we refer to these two initial phases as the “primary phase” (Allied law) and the “secondary phase” (from the provisional law of 1952 to the end of the 1960s, including BEG and BRueG). Following these initial phases, attempts were made to curtail these corrective measures. Many European countries rejected most lawsuits and applications from the end of the 1960s onwards because statutes of limitations had passed. This heralded the end of the special law pertaining to restitution, and subsequent claims under civil law were rejected due to the statute of limitations or other obstacles. However, various factors in the 1990s would bring these issues to the forefront. First, provenance-related issues arose in the art trade and at exhibitions in the late 1990s in the United States, resulting in applications for artworks to be returned. Some of these applications led to pieces being confiscated for the purposes of a judicial review of the claims. Additionally, the opening of archives after the fall of the Iron Curtain highlighted the extent of the expropriation of cultural assets from their Jewish owners. These factors led the subject to be placed again on the international agenda and ultimately led to the Washington Conference of 1998. Accusations that Current Claims to Looted Art Were Motivated by the Increased Value of the Artworks In view of the limited nature of the post-war art restitution procedures, accusing the legal heirs of the original Jewish owners of not doing enough or waiting too long to assert their claims, is an unjustified argument. It was determined that, apart from the short period immediately following the war, very little time remained for submitting applications to recover property. That is why, when assessing the efforts by former owners, both the time constraints and a claimant’s personal living circumstances must be considered. Factors include their economic situation, their ability to prove the circumstances in which the purchase and the loss took place, as well as tracking down where the artwork is currently located. If it is difficult for the actors in the art market to provide such information, then more weight must be given to Jewish vendors who were in the process of fleeing and did everything possible to obtain financial resources to save the lives of their families. Furthermore, the art dealers who were involved in the market at the time failed to provide Jewish victims with any support whatsoever. They feared that they would be held liable by the buyers themselves. This indeed was the case in a few successful civil cases in the post-war period. An example of this was the case of Emil G. Bührle v. Theodor Fischer, Galerie Fischer and the Swiss Confederation, July 5, 1951.6 The German Interpretation of the Washington Principles and the Deviation from Principles and Terms Used in the Allied Laws In Germany, museums and collections, both at the national and municipal level, jointly committed themselves to the Washington Principles and issued a “handout” and “guidelines.”7 Like the previous legal regulations in Germany, the handout refers to Allied laws and decisions associated with the terms “persecution-related loss of assets” and “confiscation,” and their subsequent interpretations. 6. Judgment of the Federal Court of July 5, 1951 (Emil G. Bührle against Theodor Fischer, Galerie Fischer and the Swiss Confederation), unpublished decision. Commentary: Emile Thilo, “La restitution des rapines de guerres,” JOURNAL DES TRIBUNAUX 386 ff. (1952). 7. German Minister of State for Culture and the Media, “Guidelines for implementing the Statement by the Federal Government, the Länder and the national associations of local authorities on the tracing and return of Naziconfiscated art, especially Jewish property of December 1999” (2019), available at https://www.kulturgutverluste. de/Content/08_Downloads/EN/BasicPrinciples/ Guidelines/Guidelines.pdf?__blob=publicationFile&v=8
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