Whose Art is it Anyway? Guidelines for Returning Cultural Property Removed Prior to World War II

Demands for the return of cultural heritage removed before 1940 have increased in recent years; in many instances, the claimants are countries that were subject to looting by colonial powers during the 19th century. In some instances, the affected countries had enacted national ownership laws regarding antiquities before World War II and have made claims based on those laws; however, many other claimant countries did not have equivalent laws, in part because they were not independent nations until the 1960s. Moreover, even where countries have longstanding patrimony laws, restitution claims may be precluded by the legal principle of laches, which bars suits in equity that are not brought in a timely manner. As there is no legal requirement for the return of cultural objects removed prior to World War II, demands for the return of such property rest on moral, ethical and practical concerns. Not surprisingly, such claims have been met with a variety of ad hoc responses; moreover, even where the responses are positive, they are sometimes driven more by political expediency than concern for the artworks themselves. This article proposes a set of guidelines that claimants and possessors should consider when determining when and how to approach demands for cultural property removed prior to the issuance of national ownership laws or adoptions of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Part I of this article summarizes the current state of the law regarding claims for works of art removed from the place of origin before World War II. Parts II looks at some recent settlements concerning such property, noting some of the flaws in these agreements, including the failure to ensure public access to the returned objects. Part III sets out proposed guidelines for determining restitution of such property to prevent similar problems in the future; these guidelines include: 1) consideration of the circumstances of the removal of the works; 2) the scarcity of such works in the country of origin; and 3) the need for preservation of and access to significant artwork.