TIAMSA BLOG: Looted Cultural Property: Arbitration and Compensation for Claimants and Owners through an International Fund? A Proposal Inspired by Insurance Models

A Detail from the Arch of Titus (Rome), End of First Century CE

By Johannes Nathan

‘70 Years and Counting: The Final Opportunity?’ was the title of a conference held at the National Gallery in London in September 2017, taking stock of the current handling of looted art in Europe. The conference title reflects the increasing frustration shared by many in spite of more than two decades of debate, countless gatherings and numerous government and non-government initiatives. In his opening keynote, John Glen, then the United Kingdom’s Minister for the Arts, Heritage and Tourism, even went so far as to ask how one might ‘breathe new life’ into these efforts.[i]

The Problem

Given the current situation, the frustration is justified. Not only do problems stemming from Nazi and other looting affect the art market – where sellers, auction houses, dealers, and buyers are increasingly worried by the risks emanating from unclear provenances. Such problems also concern present-day owners, both public and private, who sometimes have to face the unpleasant discovery that an object in their possession had been stolen or looted from a distant previous owner. Above all, however, the lack of clarity and the slowness of procedures affect those who are trying to recover works of art that have been taken from their persecuted ancestors. A member of the audience of the 2017 London conference briefly outlined his case, one of many: having researched a looted collection of about 1,100 objects over a period of many years, he had by then identified about 100 objects and found a solution for about 60. Were he to continue at this pace, the work that still lies ahead will take roughly one century.

In other words, while the victims’ heirs, who often have nothing but bare lists of looted objects (and sometimes not even that) frequently cannot trace or recover the property stolen from their often murdered ancestors, today’s public and private owners usually face similarly formidable obstacles when attempting to fully clarify the provenance of an item in their possession – and additionally risk that, after extensive research, they might have to restitute an object without being guilty of the slightest wrongdoing.

Many museums and private owners therefore still avoid provenance research, all the more so as it is complicated to arrange, very time-consuming, of potentially detrimental outcome – and costly. To be sure, a large number of cases have been solved, particularly those involving important and/or valuable works of art. In spite of decades of research, however, the number of settled cases is small in relation to those which are unsolved – and particularly in relation to the legion of cases of whose existence we are still entirely unaware.[ii]

In view of the diminishing hope that the mounting number of cases can be researched and settled with the current approach, I took the opportunity at the 2017 London conference to propose an alternative scheme: I called for the introduction of a mandatory registration of cultural property which would in effect work like a title insurance against legitimate ownership claims based on looting or theft – a proposal which I have since fleshed out in a contribution to a scholarly journal devoted to art law.[iii] Comparable in some ways to motorcar or health insurance, the envisaged mandatory registration – which would come with an appropriate fee or premium – would apply to all cultural property whose value exceeds a defined threshold, be it in museums, in public or private collections, or in the trade.

Given that looting and theft occurred not only in territories controlled by Germany between 1933 and 1945, this ‘insurance’, administered by an international fund, would cover all legitimate claims of all geographic areas.[iv] Thus it would not only compensate claimants and indemnify today’s good faith owners of objects looted under Nazi rule, it would also pertain to similar crimes from other periodssuch as extortion of indigenous art in Africa, the looting of archaeological sites in the Near East, or a 1950s theft of an old master painting from a private collection.[v] However, the scheme would only cover acts committed sufficiently long ago as to significantly or completely reduce the hope of a looted or stolen object’s recovery by established means.

An International Fund and Authority of Arbitration

The fee for an object’s mandatory registration would consist of an internationally fixed contribution in the region of a very small fraction of an object’s value (perhaps about one-tenth of a percent) which would go to an ‘International Cultural Property Fund’. The sum total of these contributions would provide the necessary means for the upkeep of the fund’s central database, for research, for settlement of contentious cases, and for compensation. Private owners would have the possibility to register their objects through a certified agent such as an insurance company (see below); here, an additional fee – probably amounting to a fraction of the contribution to the fund – would compensate the agents, covering their costs and providing for a margin of profit.

In principle, this proposal envisages that objects held in permanent ownership (e.g., by public institutions such as museums, governments, universities, etc.) are to be registered only once. Objects in private ownership would have to undergo the same initial registration, entailing payment of the appropriate fee; in addition, however, each change in ownership would require a renewed registration combined with a renewed payment of the appropriate fee. This rule not only ensures a continued feeding of the fund through objects transiting the art trade, it also guarantees that it is possible to keep track of current owners.

The information collected during registration would include basic technical data, all known information on ownership history, essential bibliography (if applicable), as well as photographs – information already today often freely accessible in the internet or in the published literature such as catalogues raisonnés or exhibition and auction catalogues. The resulting records and the object’s registration number – but not its value – would be held in a ‘World Art Database’ administered by specially trained personnel. Authorized public owners (public museums, governments, etc.) would have the option of registering their cultural property directly with this ‘World Art Database’ without the involvement of an intermediary agent, thus avoiding the premium due to the latter – but not the contribution to the fund which would be required from private and public owners alike.

Apart from listing object details, the resulting ‘World Art Database’ would also name the public owners of an item. However, in order to comply with data protection rules, the identity of private owners would not be recorded in this database. Instead, data on private ownership would be kept by the certified agent through which the object was registered. Such information would be disclosed only to authorized personnel for the purpose of investigation if good reasons suggest that an object is legitimately claimed by a previous owner, or if the resolution of a claim requires the involvement of the current proprietor who might be asked to provide additional information on ownership history or to enable its inspection by a designated impartial expert.

While certified agents, preferably established insurance companies, would thus play an important role in providing registrations – and the resulting protection from claims – for private owners, the more important tasks of data maintenance and ongoing in-depth provenance research would be performed by a dedicated administration at the ‘International Cultural Property Fund’. This fund would also actively approach current owners in case of questions or doubts on a provenance. More importantly, it would arbitrate over disputed cases through specialized panels (similar to the current commissions deciding over such cases in Austria, France, Germany, the Netherlands and the United Kingdom). Weighing the merits of each case in detail, these panels would decide if a claim should be settled through a compensation – to be paid by the fund – or through restitution. In the latter case, the current owner of the object, both public and private, would be adequately compensated by the fund.

Benefits and Costs

The scheme here proposed would end the current arbitrariness and injustices besetting the many unresolved disputes over looted art, establishing an international standard that provides security and efficient procedures for claim resolution. The inconvenience of registration and the payment of what is likely to be a very modest premium would easily be offset by the peace of mind and legal certainty gained by help of a competent institution which decides over ownership claims and which provides compensation to claimants or present day owners wherever appropriate.

It is far too early to provide a reliable estimate of the necessary sums to be put at the disposal of such a scheme, yet there is no doubt that the means at the fund’s disposal would have to be substantial, requiring in the long run several hundred million currency units (such as USD or EUR). If this seems like a lot at first sight, one quickly realizes that the premium per item would be very modest when divided among a myriad of owners – governments, museums, corporations, private collectors and the art trade – in each participating country. Thus, the estimated annual sales on the global art market in 2018 reached $67.4 billion.[vi] A mere 0.1 per cent of this sum would equal $67.4 million.

In other words, though substantial, the costs of the scheme would be minimal when borne by all and they would be amply offset by the assistance provided to claimants and by the peace of mind obtained by current owners. Apart from a modest monetary contribution, the introduction of this scheme would of course also entail a certain administrative burden caused by the process of registration – yet many institutional and private owners already possess the necessary object information, usually easily exportable from existing databases. Moreover, the objection that private owners might be reluctant to submit details on valuable cultural property in their possession because of worries over privacy and data protection could easily be allayed by stipulating that only certified intermediary agents would know the private owners’ identity and similarly sensitive information – data which insurance companies regularly collect already today.

While present day private owners would be strongly encouraged to register objects in their possession, they could and would of course not be coerced to do so. However, all public appearances of previously unregistered privately owned cultural property – for instance when offered for sale or lent to a public exhibition – would require registration.

Naturally it will not be possible to introduce this scheme at once for all countries worldwide. Instead, states with relevant art markets and a thriving public and private art scene might set the example by implementing it first, making it mandatory within their jurisdictions. This would seem particularly appropriate for the five countries that currently have commissions on looted art (Austria, France, Germany, the Netherlands and the United Kingdom) – while other countries and private owners would be free to follow.

Once implemented by a few but relevant states, the scheme’s overall benefits would probably convince most governments and private owners worldwide of its clear advantages over the present, very muddled situation. In fact it would not be too dissimilar to insurance practices widely established today, such as motorcar or health insurance. Nevertheless, many questions can neither be foreseen nor answered in a brief text such as this one. They can only be resolved by a thorough feasibility study involving experts from a range of backgrounds.  It is such a feasibility study which this proposal presently calls for.

Johannes Nathan is Co-Chair of TIAMSA. He studied Art History at NYU (BA) and at the Courtauld Institute of Art (MA, PhD) and has taught art history at the University of Berne until 2001 when he became director of his family’s Galerie Nathan in Zurich (now Nathan Fine Art in Zurich and Potsdam). In 2012 he co-founded the Center for Art Market Studies at TU Berlin. With De Gruyter Publishers, Berlin, he initiated the Art Market Dictionary for which he serves as Editor-in-Chief. Among his books are Leonardo da Vinci, The Graphic Work (Cologne 2014, with Frank Zöllner) and The Enduring Instant. Time and the Spectator in the Visual Arts (Berlin 2003, co-edited with Antoinette Roesler-Friedenthal)

[i] Cf. https://www.gov.uk/government/groups/spoliation-advisory-panel for a summary of the proceedings, mentioning also the present proposal. I discussed this scheme again at a recent conference organized by the Syndicate of German Art Trade Associations (Interessengemeinschaft Deutscher Kunsthandel) in Munich on 14 October 2019. I would like to thank participants of both conferences for their lively debate of this idea.

[ii] For an assessment of the current situation and a call for improved procedures see Evelien Campfens, ‘Nazi-Looted Art: A Note in Favour of Clear Standards and Neutral Procedures’, Art Antiquity and Law, 22 (2017), pp. 315-345.

[iii] Johannes Nathan, ‘Mandatory Title Insurance for Cultural Property: A Solution For Claimants and Owners of Looted and Stolen Art?, Art Antiquity and Law, 23 (2018), pp. 247-251. The full text can be ordered through https://ial.uk.com/publications/art-antiquity-and-law/#backcopies

[iv] Title insurances for cultural property already exist today. However, as they are not mandatory, they are taken out only very rarely and therefore prohibitively expensive. In other words, they do not work on a non-mandatory basis.

[v] Perpetrators and their heirs / beneficiaries would of course not be protected.

[vi] Clare Mc Andrew, ‘The Art Market 2019: Art Basel & UBS Report’, p. 16, available for download at https://www.artbasel.com/about/initiatives/the-art-market