Yearbook of Cultural Property Law 2010

Sherry Hutt, David Tarler, Sherry Hutt, David Tarler

• Publisher: Routledge
• Year: 2016
• Print ISBN:
  9781598744422
• eBook ISBN:
  9781315415314
• Topic: Law
• Subtopic: International Law
• Index: Law

The Yearbooks of Cultural Property Law provide the key, up-to-date information and analyses that keep heritage professionals, lawyers, and land managers abreast of current legal practice, including summaries of notable court cases, settlements and other dispositions, legislation, government regulations, policies and agency decisions. Interviews with key figures, refereed research articles, think pieces, and a substantial resources section round out each volume. Thoughtful analyses and useful information from leading practitioners in the diverse field of cultural property law will assist government land managers, state, tribal and museum officials, attorneys, anthropologists, archaeologists, public historians, and others to better preserve, protect and manage cultural property in domestic and international venues. In addition to eight practice-area sections (federal land management; state and local; tribes, tribal lands, and Indian arts; marine environment; museums; art market; international; enforcement actions), the 2009 volume features an interview with an important figure in the field and original articles on new ICOMOS rules on dispute resolution, Section 47 of the Internal Revenue Code, risk and fair market value of antiquities, the visual artists rights act, and religious free exercise and historic preservation. All royalties are donated to the Lawyer's Committee on Cultural Heritage Preservation.

ARTICLE

New Jurisdictional Tools for Displaced Cultural Property in Russia

From “Twice Saved” to “Twice Taken”

● ● ●

Amelia Borrego Sargent*

1st Place Winner 2009 LCCHP/Andrews Kurth LLP Law School Writing Competition

The D.C. Circuit Courts recent opinion in Agudas Chasidei Chabad v. Russian Federation allowed jurisdiction under the expropriation exception of the Foreign Sovereign Immunities Act (FSIA) over Russia and its agencies by employing an expansive interpretation of a “taking in violation of international law.”¹ The court held that a governmental “frustration” of an owner’s effort to physically recover property, when recovery had been secured through a final judicial judgment, may effect a “retaking” sufficient for jurisdiction.² This template for a “retaking” or “second taking” of property has potentially broad consequences for cultural property displaced during and after World War II, particularly in Russia. It also severely limits one of the most effective defenses customarily employed by nations drawn into litigation, the Act of State Doctrine.

This paper examines the implications of Chabad for art and antiquities restitution cases in the United States with a particular eye toward Russia, whose museums hold enormous collections of so-called “trophy art” collected after World War II. First, I provide a short historical introduction to the problem of trophy art in Russia, followed by an examination of the FSIA and how it has been expansively applied in Holocaust art restitution cases in the United States. Then I discuss the Chabad decision regarding the FSIAs burden of proof standard and template for “twice taken” cultural property, and its implications for the FSIA expropriation exception and the Act of State Doctrine. Finally, I consider how the “twice taken” template may interact with Russia’s Federal Law on Displaced Cultural Valuables, and discuss some of the policy implications and likely efficacy of this judicial expansion of the FSIA. Ultimately, I conclude that, although this judicial innovation will make it much easier for individuals to press claims for restitution of Holocaust art, U.S. judicial orders will only exacerbate tensions with reticent countries like Russia. One may hope that such increased tension will spur diplomatic efforts from both sides toward a solution.

“Twice Saved” Trophy Art

Art Looting During World War II

Millions of cultural objects were looted or displaced during World War II, including artworks, antiquities, religious objects, sculpture, monuments, and artifacts.³ Hitler first began realizing his ideological policy of a “pure” and “Germanic” Europe when he rose to power in 1933.⁴ Among other things, achieving this involved the systematic wholesale appropriation and purging of so-called “degenerate” or “depraved” art within Germany, which included works by abstract contemporary artists such as Kandinsky or Franz Marc, works by Jewish artists, and works in Jewish collections.⁵ Many such works were exhibited for ridicule in “Degenerate Art” shows around Germany, while others were appropriated from their owners or museums and sold on the open market to raise funds for the Third Reich.⁶ Some works ended up in the private collections of Nazi officials.⁷ “Worthless” paintings were burned.⁸

When war broke out, no fewer than four agencies backed by the Nazi police and military dealt with art matters.⁹ Two of these were particularly dedicated. Hitler envisioned a vast museum complex in his hometown of Linz, and established a personal agency to build up a collection with works from newly conquered territories, focusing on the finest examples of art Europe’s museums had to offer.¹⁰ The Einsatzstab Reichsleiter Rosenberg [ERR] was a much larger operation. Created under the direction of Albert Rosenberg to loot Jewish books, archives, and religious objects for the purposes of setting up an anti-Semitic think tank, it eventually expanded its activities to include the indiscriminate taking of art from occupied territories that Nazi party officials directed to be seized.¹¹

Nazi art looting on the Eastern front was particularly brutal. Slavic culture was to be eliminated completely; only works with “Germanic” connections were preserved.¹² Both the ERR and the Schutzstaffel [SS] engaged in art plunder, with the SS “using methods so brutal that they drew criticism from Reichsleiter Rosenberg himself.”¹³ The ERR had looting divisions in Minsk, Riga, Tallinn, and Kiev.¹⁴ Many cultural and religious institutions were simply destroyed; the Nuremberg war crimes indictment lists the destruction of over 427 museums, 1,670 Russian Orthodox churches, 237 Roman Catholic churches, and 532 synagogues in the occupied territory of the USSR.¹⁵ The palaces at Pushkin (Tsarskoye Selo), Peterhof (Petrodvorets), Pavlosk, Gatchina, and Oranienbaum (Lomonosov) were also plundered or burned.¹⁶ Buildings in the medieval cities of Novgorod and Gdov were damaged or destroyed by bombs and fire.¹⁷ The famous eighteenth-century Amber Room from the Catherine Palace at Pushkin was dismantled and taken to Königsberg.¹⁸ Never recovered and presumably destroyed, it remains a symbol to the Russians of the cultural treasures lost during World War II.¹⁹

Albert Rosenberg’s conviction at Nuremberg was the first time plunder of cultural property was held to be a war crime.²⁰ The indictment listed the plunder and destruction of cities, cultural monuments, and “property of all types” as contrary to the Hague Convention (1907), and listed particular museums, private collections, and cities plundered and destroyed in both Western and Eastern countries.²¹ The final judgment summed up only a portion of Rosenberg’s activity:

Acting under Hitlers orders of January 1940 to set up the “Hohe Schule,” he organized and directed the “Einsatzstab Rosenberg,” which plundered museums and libraries, confiscated art treasures and collections, and pillaged private houses.

His own reports show the extent of the confiscations. In “Aktion-M” (Möbel), instituted in December 1941 at Rosenberg’s suggestion, 69,619 Jewish homes were plundered in the West, 38,000 of them in Paris alone, and it took 26,984 railroad cars to transport the confiscated furnishings to Germany. As of July 14, 1944, more than 21,903 art objects, including famous paintings and museum pieces, had been seized by the Einsatzstab in the West…. The Tribunal finds that Rosenberg is guilty on all four Counts.²²

He was sentenced to death by hanging.²³

Art Looting After World War II

While the Allies jointly considered looting and pillage of cultural property during wartime to constitute a crime, the legality of similar activities after wartime was more complex. “[S]everal million” objects of art were gathered by U.S. MFA&A officers (Monuments, Fine Arts & Archives Section) at Collecting Points, artworks that the Nazis scattered and dispersed, hid in caves and mines, and walled up in underground bunkers as Allied troops advanced.²⁴ The Allies had never formulated a coherent policy on restitution-in-kind or using cultural assets as reparations.²⁵ Ultimately, U.S. and British policy became to return a work to the nation from which it had been taken.²⁶ German st...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Preface
• Introduction
• Comment
• Practice Area Sections
• Articles
• Resources
• Tributes: Recognizing Career Achievements in Cultural Resource Protection
• Table of Cases
• Yearbook 2010 Contributors and Editorial Board
• Index