Canada and looted art

Ten years ago, on November 15-16, 2001, an international conference on looted art took place under the auspices of the National Gallery of Canada in Ottawa, organized by the Canadian Museum Association (CMA) and the Canadian Jewish Congress (CJC). The conference brought together all parties and individuals involved at the time with the issue of looted art. They represented the private art market, the public sector, NGOs; there were numerous lawyers representing both sides of the debate, claimants, historians, and researchers. In the course of two days of animated discussions and presentations, the participants agreed to articulate a series of points and principles from which to issue recommendations for future action in Canada and beyond.

The following is a summation of those debates. There are official reports of the conference and its effects on Canadian institutions that you can consult on-line via the Claims Conference website. Take what you will from them.

The good news is that the discussion was friendly, productive, and pragmatic. The not-so-good news is that everyone went home and not much happened in Canada to push forth the debate on restitution in a manner consistent with the wishes and concerns expressed by the participants. Judge for yourself:

Canada, like so many other countries where there is an art market, is a recipient of loot and has been for decades.

It is a general, albeit vastly understated fact, that 90% of looted art is ‘invisible’ to traditional art historians, and scholars. Although issues pertaining to cultural plunder are not new, there is widespread ignorance of its scope and breadth in the art world, government circles, and the Jewish Community of Canada.

As of 2001, there were no laws on the books—Federal, provincial, or local–to deal with this issue. Dr. Franklin, of the National Gallery of Canada in Ottawa, host of the Looted Art Conference, was quick to say that “There is no legal obligation [for museums in Canada] to restitute.”

Museums have no legal obligations to return stolen works of art to their rightful owners. If claims are filed against individuals, they will be subject to local laws governing statutory limits, laches, good faith purchasing, willful blindness and due diligence. In sum, there are no overt mechanisms in Canada either at Federal or local level for dealing with Holocaust-era cultural property claims.

Then and now, there are few if no resources—human, financial, archival, bibliographical, and academic—for undertaking a serious, exhaustive, review of all institutional holdings in Canada in an effort to identify looted art. Scattered efforts have been duly noted amid 4 largest museums in Canada, as well as in a few smaller institutions.

Everyone acknowledged that there are no short-term fixes to the problem. Solutions are long-term.

What is to be done?

The participants came up with a series of goals to consider for bringing about needed progress on the subject of looted and art restitution:

• To identify all looted works in Canadian collections.
• To facilitate recovery of such works by rightful owners.
• To prevent resale of looted/stolen works on Canadian art market—public/private
• To create legal/policy environment to facilitate identification and recovery of stolen works of art.
• To establish common standards of evidence that fall outside of traditional rules of civil procedure.

How can these goals be achieved?

Obviously, one cannot expect any assistance from the Federal government, at least not in the short-run.

The onus of support therefore falls on provincial governments: they should either enact or modify laws that facilitate recovery and restitution, and that acknowledge the problem of stolen cultural property.

Museums must conduct reviews of holdings and identify looted works in their collection, ascertain their status, whether those objects have been recovered or not.

The provinces should put forth standardized responses to this problem.

The Canadian Museum Association, ICOM, and other art and cultural property groups, should petition the Federal government to study the problem and produce a Green Paper (the Canadian equivalent of an American White Paper).

The legal experts at the Ottawa Conference agreed that restitution principles should be anchored in local and provincial laws because of the absence of any Federal law in Canada and of Canada’s obstinate refusal, like that of the United States and dozens of other countries, to sign the UNIDROIT convention on stolen and illicit cultural property.

However, conflict resolution in provincial and local jurisdictions will be subject to different legal regimens and rules governing statutes of limitations, laches, burden of proof and rules of evidence.

Hence, any legal strategy must be focused on a moral and ethical appeal to institutions to restitute, founded on the London Declaration of 5 January 1943—the Inter-Alled Declaration Against Axis Acts of Dispossession. The operating principle has been and should always be: if the work was stolen, theft does not convey title. Even this adage has its variants in countries where the possessor of stolen property can become the rightful owner of the stolen object if no claim has been filed against it over a set period of time.

According to Bonnie Czegledy, the good faith purchaser in Canada cannot hide behind ignorance of the fate of acquired works—which is also referred to as willful blindness. Due diligence rules apply, which involve on the part of the acquirer of the art object to engage in research that would enable her/him to be convinced of the licit/illicit status of the object and base her/his decision to acquire or not the object as a result of this research.

Fill the legal loopholes regarding the resale of stolen works of art.

RECOMMENDATIONS FOR CANADA:

• Define looted object to include EVERYTHING cultural, including antiquities and books/manuscripts, decorative objects.
• Create legal/policy environment to facilitate identification and recovery of looted works
• Establish common standards of provenance research, evidence and claims adjudication for Canada.
• Conduct a census of all institutional collections in Canada susceptible of containing looted works. Prioritize risk to institutions regarding the repatriation of works. The purpose of this census is to assess the breadth and scope of the problem of looted art in public and private collections. For this to occur, establish a core group of researchers to do initial research and that can travel to all collections across Canada, with financing from provincial governments and Federal foundation endowments, provided that the funding is renewable until the census is completed.
• Ask the Canadian Museum Association to adopt an assertive strategy that will facilitate ultimate goals; it should communicate guidelines to museums on how to deal with the public and with claimants.
• Petition the Federal government to issue a Green Paper on accession to the UNIDROIT convention on stolen and illicit cultural property. The Federal government involvement in the issue of looted art could begin with the creation of a Central Web Portal run by Canadian Heritage Info Network or another entity so as to respond to inquiries and disseminate information.
• Invoke as the moral framework for treatment of looted art claims in Canada the London Declaration of January 5, 1943, or the Inter-Allied Declaration against Axis Acts of Dispossession. Canada signed it together with 15 other countries, including the United States and Great Britain, leading co-sponsors and formulators of the Declaration.
• Build a network of assets and skills in Canada and elsewhere to facilitate research efforts.
• Create a third-party group which oversees claims if the Federal Government refuses to handle them. Encourage the creation of provincial offices within existing agencies to process claims modeled after HCPO in NYC. This NGO would be supported by the Federal government and owned by the community. The stakeholders would include: museums, the art world, claimants, Jewish and arts and cultural property groups, historians, researchers, scholars, experts, government representatives, with a balanced private/public membership. It would be transparent and completely accessible.
• Identify all pertinent records dealing with looted art which can be found in Canadian archives–governmental, academic, institutional, civilian and military.
• Produce a guide of those records, similar perhaps to NARA’s Guide on Holocaust-Era Assets
• Incorporate the Canadian Jewish community as well as arts and cultural property organizations into these efforts for education, outreach, lobbying, fundraising, and logistics.
• Promote the training of individuals in provenance research through universities, cultural institutions and at all levels of government—local, provincial, and Federal. For instance, recruit graduate students from Young Canada Works for provenance work who have art history, history, museum science, forensics and related backgrounds.
• Seek public and private funds perhaps even from the UN and the EU to include museums, auction houses, independent scholars, government agencies, as part of an overall effort to stanch the resale of looted works on the art market.

Internationally:

• Promote the creation of an international research network to assist provenance checks.
• Create a third-party group or panel to oversee claims adjudication and to conduct research.