AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! PAGE 1
WHAT EFFECT WILL THE AAMD
G U I D E L I N E S H A V E O N T H E
ANTIQUITIES MARKETS?
By Erin Thompson, New York
OFFICIADUNT
CONTENTS
TRAFFICKING NEWS
NOTES
PAGE 3
BARAKAT EXPLAINED
PAGE 6
RELOCATING THE
BARNES FOUNDATION
PAGE 10
ON THE BEAT!
COMMITTEE NEWS AND
EVENTS
PAGE 13
DECLARATORY
JUDGMENTS AND
HOLOCAUST ART
PAGE 14
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! SUMMER 2008, VOL. I, ISSUE NO. III
In 2004, an Italian court convicted Giacomo Medici, an Italian
citizen, of dealing in illicitly excavated antiquities. The fascinating
story of Italy’s investigation into Medici and his antiquities
smuggling ring is detailed in The Medici Conspiracy, a book by
Peter Watson and Cecilia Todeschini.
Medici and his accomplices kept meticulous records of the illicit
antiquities which passed through their hands. Thanks to these
records, Italy has recently successfully demanded the return of
illegally-exported Italian antiquities from the collections of
American museums, including the Getty Museum, Boston Museum
of Fine Arts, and Metropolitan Museum of Art.
In 2008, the American Association of Museum Directors
(“AAMD”), an influential professional organization, reacted to
Italy’s aggressive repatriation demands by formulating a new set of
guidelines for the purchase of antiquities (available at
www.aamd.org). The guidelines are not binding on member
museums, but several museums have released statements indicating
that they will follow the AAMD’s recommendations.
The guidelines recommend that AAMD member museums should
not normally acquire an antiquity unless the museum’s own
research shows that the object left its country of origin before 1970,
the date of the relevant UNESCO Convention. This is an admirable
change from the previous practice of relying on antiquities dealers
to provide information about the provenance and history of the
objects they sold.
However, the guidelines contain an exception that swallows the
rule: museums are able to acquire antiquities about whose
ownership history they can discover no information, if the museum
is satisfied that the benefit of preserving the object outweighs the
reputational harm of a possible future repatriation claim.
The guidelines reflect the dilemma of collectors and museums
interested in acquiring antiquities. On the one hand, purchasers
want to avoid buying antiquities that may be (cont’d on page 19)
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! PAGE 2
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! SUMMER 2008, VOL. I, ISSUE NO. III
ABOUT US
The Art & Cultural Heritage Law
Committee is a committee of the American
Bar Association Section of International
Law. Its current leadership is as follows:
CO-CHAIRS
Jennifer Kreder
Lucille Roussin
VICE CHAIRS
Patty Gerstenblith
Rick St. Hilaire
Marilyn Phelan
IMMEDIATE PAST CHAIR
Cristian DeFrancia
To get involved with the Committee, please e-mail
NEWSLETTER STAFF
EDITOR-IN-CHIEF
Cristian DeFrancia
BOARD OF EDITORS
David Bright, Jaclyn Cornlell, Bonnie Czegledi,
Pamela Epstein, Sharon Erwin, Patty Gerstenblith,
Barry Goldbrenner, Nicole Devero McGrew, Jennifer
Kreder, Peggy Mevs, Lucille Roussin, Betina
Schlossberg, Lisa Solomon, Rick St. Hilaire, Erin
Thompson, Laina Wilk
CONTRIBUTORS
Sharon Erwin, Gregor Kleinknecht, Jennifer Kreder,
Lucille Roussin, Erin Thompson, Rick St. Hilaire
Subscription & Submissions
Please contact [email protected]
Submissions are welcome and will be
published at the discretion of the editors.
We also encourage artists to submit their
work and border art in jpeg format, which
will be duly credited to the artist. Views
contained in the newsletter are those of the
authors only and do not represent the
official position of the Committee or the
American Bar Association.
Welcome to our Third Issue!
On behalf of the Art & Cultural Heritage Law
Committee, welcome to the third issue of our
newsletter. Our aim is to inform art and
cultural heritage law enthusiasts about recent
developments in the field, to provide a forum
for discussion of related issues, and to provide
opportunities for interested persons to get
involved. The first two issues were such a
success that we now intend to move from a
biannual to a quarterly format. In future
issues, we hope to incorporate a calendar for
art and cultural heritage law related events and
announcements relating to other events and
internship opportunities. We welcome your
input and hope you enjoy this issue!
Cristian DeFrancia
Editor
Bonnie Czegledi
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! PAGE 3
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! SUMMER 2008, VOL. I, ISSUE NO. III
ART & ANTIQUITIES TRAFFICKING NEWS NOTES
April
The Associated Press reported
that Italian authorities recovered over
a dozen looted antiquities located in a
boat garage near Rome. One of the
pieces was the marble head of
Emperor Lucius Verus, who ruled
alongside Marcus Aurelius.
James Cuno, president and
director of the Art Institute of
Chicago and the author of this year's
widely publicized book Who Owns
Antiquity? Museums and the Battle
Over Our Ancient Heritage, argued
against national cultural property laws
in YaleGlobal. He wrote:
At the core of my argument against nationalist retentionist cultural property laws . . . is their basis in
nationalist-identity politics and implications for inhibiting our regard for the rich diversity of the world's
culture as common legacy. They conspire against our appreciation of the nature of culture as an
overlapping, dynamic force for uniting rather than dividing humankind. . . .
Sadly, the public discussion about nationalist retentionist cultural property laws focuses on their role,
which foreign governments and the archaeological community promote, as a means of protecting the
integrity of archaeological sites. It's argued that the laws inhibit looting and consequent illicit trade.
But this is only partly true. Over the decades in which they've been in place, strengthened by international
conventions and bilateral treaties, the looting of archaeological sites has continued. . . . The real purpose
of such laws . . . is to preserve nation states' claims of ownership over antiquities found or presumed to
have been found within their jurisdiction. . . . .
The alternative to consigning the protection of our ancient heritage to national jurisdiction is the United
Nations, specifically its cultural body, UNESCO. Sadly, UNESCO's Achilles' heel is its grounding in
nation-state politics and its respect for nationalism.
An ancient funerary vase was returned to Greece after a Swiss antiquities dealer attempted to sell
the object at auction. ARTINFO reported that the illegally exported lekythos was recognized from
pictures seized by authorities from suspected antiquities smugglers.
The Syrian government returned 700 stolen artifacts, seized by customs authorities, to Iraq,
according to Agence France-Presse.
The US Department of State issued a press release announcing that the Department of Homeland
Security imposed import restrictions on cultural property originating from Iraq. The State Department
explained that "[t]he import restriction is imposed under the Emergency Protection for Iraqi Cultural
Antiquities Act of 2004, which confers upon the President the authority to make emergency
determinations under the Convention on Cultural Property Implementation Act with respect to any
archaeological and ethnological material of Iraq. Acting under Presidential delegated authority, the
Department made the necessary statutory determinations including that the subject material is a part of
the remains of a particular culture or civilization, the record of which is in jeopardy from pillage,
dismantling, dispersal, or fragmentation that is, or threatens to be, of crisis proportions. The depredation
to the national patrimony of Iraq due to pillage and the unauthorized export of that country's cultural
Udjat Eye (Eye of Horus)
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! PAGE 4
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! SUMMER 2008, VOL. I, ISSUE NO. III
ART & ANTIQUITIES TRAFFICKING NEWS NOTES
(cont’d)
property has been extensively documented."
May
Press TV reported that Dr. Bahaa Mayah, a special adviser to Iraq's Minister of Tourism and
Antiquities, called for a ban on the sale of artifacts that have been stolen from Iraq since 2003. Dr.
Mayah spoke at the British Museum and explained that such a ban would mitigate the smuggling of
antiquities outside Iraq's borders.
Yemeni officials called on oil companies in that country to exercise more control over their
workers after arresting a French oil employee at Sana'a International Airport for smuggling bronze
statues and antique coins. Hisham al-Thawr, director general of Antique Protection at the General
Organization of Antiques and Museums was quoted in the Yemen Times as saying: "This is the third time
we seized workers for this company with such crime."
Italy reached agreement with the Cleveland Museum of Art for the return of 16 ancient objects,
reported the Associated Press. Maurizio Fiorilli, the Italian lawyer who negotiated the repatriation of
antiquities from several other U.S. museums, also negotiated the agreement in principle with the
Cleveland Museum.
A grand jury handed down charges against Phillip Fields for removing archaeological resources
from federal lands of Deschutes National Forest in Oregon. The Oregonian stated that Fields served a
term in federal prison thirteen years ago for illegally excavating artifacts.
June
The participants at the 7th International Symposium on the Theft of and Illicit Traffic in Works of
Art, Cultural Property and Antiques in Lyon, France adopted the following recommendations, quoted
here:
RECOMMEND that member countries:
(1) Regularly add updated information to the General Secretariat's Works of Art Database;
(2) Send to the General Secretariat all information necessary to carry out crime analyses on international
cultural property traffickers;
(3) Circulate as widely as possible the INTERPOL-UNESCO-ICOM joint letter on Basic Actions
concerning cultural objects being offered for sale over the Internet so that these actions can be
implemented, and conclude agreements with auction platforms in order to reduce illegal sales and to
monitor this type of trade as effectively as possible;
(4) Monitor land and underwater archaeological sites and tackle the illegal traffic which follows looting
by adopting appropriate legislation in compliance with existing international instruments;
(5) In the event of a seizure of Iraqi cultural property, contact the experts on the list drawn up by
UNESCO, available on the General Secretariat's secure website;
(6) Make the owners of cultural property aware of the need to draw up inventories of the property and
make arrangements for its protection;
RECOMMEND that the General Secretariat:
Pursue the initiative of granting the widest possible access to INTERPOL's Stolen Works of Art Database
via the website;
RECOMMEND that INTERPOL, UNESCO and ICOM:
Jointly seek ways of raising awareness among law-enforcement services, those responsible for
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! PAGE 5
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! SUMMER 2008, VOL. I, ISSUE NO. III
ART & ANTIQUITIES TRAFFICKING NEWS NOTES
(cont’d)
safeguarding religious heritage, the major players in the art market and the conservation world, and the
general public, with regard to protecting cultural property and combating illegal trafficking.
The antiquities department in Iraq issued over 10,000 identification cards to Interpol, which
describe the artifacts stolen from the Iraq Museum in 2003. The cards, reported Azzaman, show pictures
and the museum identification numbers of the objects.
The International Council of Museums announced that it will publish a Red List of Khmer
antiquities. The list is expected to help dealers, collectors, and authorities identify artifacts smuggled
from Cambodia.
Hungarian authorities arrested five individuals on theft charges following an investigation that
recovered jewels looted from archaeological sites. The jewels were intended to be smuggled out of
Hungary, reported Caboodle.hu.
The Associated Press reported that a judge in Indonesia jailed a 70 year old museum curator
from the Radya Pustaka Museum for his role in stealing six ancient Buddhist statutes and selling them
to a Dutch dealer for $3,500 to $20,000 apiece. Fakes were set in place of the stolen statues to cover up
the thefts.
The FBI returned American Indian artifacts stolen from a California museum following a three
year investigation. The objects included nine Zuni and Hopi pots and eight reed baskets made by
Cahuilla Indians, said the Los Angeles Times.
July
A new web site, stolen-and-wanted.com, was initiated to help recover stolen art works.
The Greek culture ministry reached agreement with private U.S. collector Shelby White for the
return of a marble sculpture and a bronze vase. According to the Associated Press, the ancient objects
were reportedly illegally excavated and smuggled out of Greece.
The Times of India reported that police arrested two individuals caught in the act of selling an
allegedly stolen gold Buddha.
A Kentucky grand jury indicted an Ohio historian for removing an Indian Head Rock from the
Ohio River. WSAZ in Kentucky reported that Steve Shaffer pleaded not guilty to the charge, asserting
that he saved the rock from damage or loss.
An inspection by customs officials at the Miami National Airport revealed pre-Columbian gold,
emeralds, and artifacts being smuggled by an Italian citizen living in Florida. The Associated Press
reported that the objects were scheduled for return to Ecuador.
Dinosaur bones and other fossils smuggled from Argentina were returned by US authorities. The
objects were recovered in 2006 in Arizona at a mineral fair after a report was made to Interpol,
explained BBC News.
-Ricardo A. St. Hilaire
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! PAGE 6
Introduction
Following Patty Gerstenblith’s timely report
on the highly significant Barakat decision
handed down by the English Court of Appeal on
21 December 2007 ([2007] EWCA Civ 1374),
published in the last issue of this newsletter, this
article will review the judgment, the applicable
legal principles, judicial reasoning and
consequences of the decision for the international
art market, in some more detail. By way of
reminder, with its action, the Islamic Republic of
Iran successfully sought to recover antiquities
present in London and said to form part of its
national heritage.
The Facts
The facts of the case are quickly summarised.
Barakat Gallery, an international dealer in ancient
art and antiquities, had in its possession in
London eighteen carved jars, bowls and cups
made from chlorite and said to date from the
period 3000 BC to 2000 BC. Iran sought to
assert its ownership of the antiquities which it
alleged formed part of its national heritage and
originated from recent excavations in the Jiroft
region in the Kerman province of southern Iran,
which were unlicensed and unlawful under the
laws of Iran. Barakat denied the origin of the
antiquities and claimed to have purchased them
legally on the open market in France, Germany
and Switzerland for about £250,000 (US
$500,000) and to have acquired good title to
them. However, for the purposes of the court’s
determination, Iran’s allegations were assumed to
be correct.
The Issues to be Decided
The Court of Appeal, as the High Court at first
instance before it, was in fact concerned with two
preliminary questions, namely:
1. Whether under the provisions of Iranian
law pleaded in the amended particulars of claim,
Iran could show that it had obtained title to the
objects as a matter of Iranian law and, if so, by
what means.
2. If Iran could show that it had obtained
such title under Iranian law, whether the court
should recognise and/or enforce that title.
The Applicable Law
In relation to the first issue, it was common
ground between the parties that the question of
title to the antiquities fell to be determined
according to Iranian law as the lex situs of the
antiquities at the time when title was derived.
Under English law, the determination of Iranian
law was a question of fact. Iran relied extensively
on its internal laws and regulations in relation to
antiquities, in particular, on the National Heritage
Protection Act 1930, and the Legal Bill of 1979
Regarding Prevention of Unauthorised
Excavations, etc.
Iran’s legislation is by no means unusual in
this regard since many source nations have
enacted legislation intended to protect their
cultural heritage against looting, illegal
excavation and trafficking of antiquities, often by
vesting property in undiscovered antiquities in
the State.
Iran’s primary case was that Iranian law
vested in Iran a proprietary title to the antiquities
that enabled it to recover them in proceedings in
England. Iran’s alternative case was that Iranian
law gave Iran an immediate right to possession of
the antiquities that enabled it to recover the
antiquities in England based on a claim in tort for
conversion or wrongful interference with goods.
A claim for conversion under English law is
based on the provisions of the Torts (Interference
with Goods) Act 1977 (the “Act”). The Act
recognises the possible existence of different
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! SUMMER 2008, VOL. I, ISSUE NO. III
I RA N v . B A RA K A T : E NG L IS H C OU R T O F A PP E AL
REINFORCES POSITION OF SOURCE NATIONS
By Gregor Kleinknecht, London
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! PAGE 7
interests in goods, namely, possessory title and
proprietary title, but does not define those
concepts. The Court of Appeal reviewed the law
as it stands and held that, in order to sue in
conversion, a claimant must show that he had
either possession, or an immediate right to
possession, of the chattel at the time when the
wrongful interference with his right took place.
Both possession or an immediate right to
possession will afford the possessory title
required in order to succeed with a claim in
conversion. There is some uncertainty in English
law, however, as to whether the claimant’s claim
to possession must be proprietary.
In relation to the second issue, the underlying
principle is that there is no jurisdiction for the
English courts to entertain an action for the
enforcement, directly or indirectly, of a penal,
revenue or other public law of a foreign state.
However, it is not the label which the foreign law
gives to the legal relationship, but its substance,
which is relevant.
The Decision at First Instance
In his judgment dated 29 March 2007 ([2007]
EWHC 705 (QB)) following the trial of the
preliminary issues in the High Court at first
instance, Mr Justice Gray held that the Iranian
antiquities laws were insufficient, or at least
insufficiently clear, to give Iran a proprietary
claim to the antiquities, or an immediate right to
possession of the antiquities sufficient to found a
claim in conversion. The Judge therefore
answered the first question in the negative. In
relation to the second question, the Judge
concluded obiter that the relevant Iranian law
relied upon by the claimant was both penal and
public in character and could therefore not be
enforced in England or relied upon to found
Iran’s claim. The Judge described both
conclusions as regrettable.
The Court of Appeal Judgment
The unanimous judgment of the Court of
Appeal was delivered by the Lord Chief Justice,
allowing Iran’s appeal and reversing the earlier
decision of the trial Judge at first instance.
Iran’s Interest in the Antiquities under Iranian
Law
In analysing the Iranian legislation in
connection with the first issue, the Court of
Appeal reviewed the substance of the Iranian law
on the basis that if the rights conferred on Iran by
Iranian law were equivalent to ownership in
English law, then English law would treat that as
ownership for the purposes of conflict of laws.
Under the relevant Iranian law, there was no clear
declaration of ownership, or express vesting of
title to the antiquities in issue in Iran, but a finder
did and could not acquire title to newly
discovered antiquities found accidentally or as a
result of illegal excavation, and Iran’s personal
rights in relation to such antiquities were so
extensive and exclusive that Iran was properly to
be considered the owner of the artefacts found.
The Court of Appeal found that the sum of the
rights enjoyed by Iran were essentially the rights
of ownership under English law, and further
stated (obiter) that, had their Lordships not
reached this conclusion, they would have found
that, under Iranian law, Iran enjoyed an
immediate right to possession of the antiquities
that would vest ownership on taking possession.
The Court of Appeal therefore answered the first
question in the affirmative.
Cause of Action in Conversion
The Court of Appeal sub-divided the question
as to whether Iran’s interest in the antiquities was
sufficient to found a cause of action in
conversion into two issues:
1. Whether Iran’s interest in the antiquities
was of such a kind as to found a claim in
conversion? If so
2. Whether Iran’s claim was nonetheless not
justiciable in England because it is founded on
a penal or public law?
As explained above, the Court of Appeal had
concluded that Iran enjoyed both a proprietary
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! SUMMER 2008, VOL. I, ISSUE NO. III
IRAN v. BARAKAT (cont’d)
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! PAGE 8
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! SUMMER 2008, VOL. I, ISSUE NO. III
title and an immediate right to possession of the
antiquities (and therefore had a good claim in
conversion) and (obiter) that, had their Lordships
not formed this view, they would have concluded
that Iran enjoyed an immediate right to
possession of the antiquities as a matter of
Iranian law, which would vest ownership on
taking possession and would have been sufficient
to found a claim in conversion. The Court of
Appeal therefore answered the first issue in the
affirmative.
Recognition/Enforcement of Iranian Law
In relation to the second issue, which it also
answered in the affirmative, the Court of Appeal
took the view that Iran was asserting a
proprietary claim to antiquities which formed
part of its national heritage, and qualified this
claim as a patrimonial claim rather than a claim
to enforce a public law, or to assert sovereign
rights. The Court of Appeal further took the
view that the relevant Iranian law was not penal
in nature. While parts of the Iranian legislation
dealt with criminal penalties for unlawfully
excavating or dealing with antiquities, the
legislation was not penal with respect to the
ownership of antiquities. The Court of Appeal
drew a distinction between these different types
of provision in the Iranian legislation. The
former was clearly public law and unenforceable
absent an international treaty obligation, whereas
the latter was justiciable in England.
There was no impediment to recovery, and the
issue of penal/public law did not arise, if the
State had acquired title under its law to property
within its jurisdiction and owned that property in
the same way as a private citizen (see King of
Italy v. de Medici (1918) 34 TLR 623). In that
case it is not necessary that the foreign State
should have reduced the property into its
possession and English law will recognise that
title.
The Court of Appeal distinguished this case
from earlier decisions, such as Att-Gen of New
Zealand v. Ortiz [1984] AC 1 (CA and HL),
where cultural objects were liable to confiscation
under foreign law, and enforcement of title, or of
a right to immediate possession under foreign
law, depended on the State having taken actual
possession of the object it seeks to recover. A
refusal to recognise the title of a foreign State,
conferred by its national law, to antiquities unless
they had come into the possession of that state
would in most cases render it impossible for the
UK to recognise any claim by such a State for the
recovery of antiquities illegally exported to the
UK. In distinguishing this claim, the Court of
Appeal also referred to the US case of United
States v. Schultz, 333 F3rd 393 (2d Cir. 2003), in
which the Second Circuit had recognised a claim
under Egyptian patrimony law even though
Egypt had never reduced the artefacts in issue
into its possession.
However, importantly, the Court of Appeal
continued to note obiter that, even if it was
wrong in its view that Iran’s claim was not a
claim for enforcement of a foreign public law,
such a claim should not be precluded by any
general principle that the English courts would
not entertain an action whose object it was to
enforce the public law of another State, unless
such enforcement was contrary to English public
policy. The Court of Appeal effectively endorsed
the approach taken in the Australian Spycatcher
case (Att-Gen (UK) v. Heinemann Publishers
Australia Pty Ltd (1988) 165 CLR 30), which the
Privy Council had previously all but approved
obiter in President of the State of Equatorial
Guinea –v- Royal Bank of Scotland ([2006]
UKPC 7), and which the Court of Appeal
described as laying down a “helpful and
practical” test. That test was effectively to
ascertain whether the central interest of the
IRAN v. BARAKAT (cont’d)
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! PAGE 9
foreign State in bringing the action was
governmental in nature.
The Court of Appeal further found that there
were positive reasons of policy why a claim by a
State for recovery of antiquities which formed
part of its national heritage, and which otherwise
complied with the principles of private
international law, should not be precluded by any
such general principle. Conversely, it was
contrary to public policy for such claims to be
shut out. There was international recognition
that States should assist one another to prevent
the wrongful removal of cultural property. The
UK was a party to international instruments
which had the aim of preventing the unlawful
dealing in property which formed part of the
cultural heritage of States. The Court of Appeal
specifically referred to the 1970 UNESCO
Convention, the 1995 Unidroit Convention, EU
Council Directives, and the Commonwealth
scheme in this respect. Those instruments
illustrated the international acceptance of the
desirability of protection of national heritage
(and are an expression of UK public policy even
though they are not otherwise of direct relevance
in this case). The Court of Appeal therefore
answered the second issue in the affirmative, too.
Analysis
The Court of Appeal judgment is a landmark
decision. The Judge at first instance had
expressed regret at the conclusions which he had
reached and the Court of Appeal’s reversal of that
decision has been widely welcomed. The Court
of Appeal understandably did not let the Judge’s
somewhat superficial and literal interpretation of
Iranian law stand and the underlying policy
reasons for a rather more sophisticated analysis
of Iran’s proprietary claim are clearly evident
throughout.
The decision furthers the spirit of international
cooperation and the aim of effective world-wide
protection of source nations’ heritage from the
unlawful removal of cultural objects. A ruling
against Iran would certainly have had a big
impact on the black market trade in illegally
excavated antiquities and the decision is
therefore a tremendous success for source
nations. The position under US law following
the Schultz decision and the position under
English law following the Court of Appeal’s
decision in Barakat are now harmonised, which
will contribute to legal certainty in the
international art market, and strengthen the
international fight against dealings with illegally
excavated antiquities.
Gregor Kleinknecht is the managing director
of Klein Solicitors, a successful independent
legal boutique in London, England. Art and
cultural heritage law is one of his firm’s core
practice areas.
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! SUMMER 2008, VOL. I, ISSUE NO. III
IRAN v. BARAKAT (cont’d)
Vision of the Throne of the Lord (The Paris Apocalypse)
c. 1400
Bibliothèque Nationale, Paris
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! PAGE 10
On May 15, 2008, the Orphans' Court of
Montgomery County, Pennsylvania dismissed the
most recent legal challenge to the Court's order
and opinion of December 13, 2004, granting
permission to the Trustees of The Barnes
Foundation to relocate its art gallery from
Mo n t g ome r y Co u n t y, P enn s y l van i a to
Philadelphia, contrary to the terms of Dr. Albert
C. Barnes' Trust Indenture. Under Pennsylvania
law, any deviation from Dr. Barnes’ instructions
must be approved by Orphans Court in
Montgomery County, the court responsible for
charitable trusts located within the County. In
addition, the Attorney General of Pennsylvania
plays a significant role, arising from his
representation of the public interest in charitable
trust issues, often referred to as the doctrine of
parens patriae. As with several past decisions
involving the Barnes, the decision turned on the
issue of standing.
By way of background, Dr. Barnes' Indenture
specified that the paintings were to be kept “in
exactly the places” they were at time of his death.
Dr. Barnes personally arranged the art in the
mansion he commissioned Paul Credit, architect
of the Rodin Museum, to design to house the
collection. The collection, now valued in excess
of $6 billion, is one of the world's largest
collections of Impressionist, Post-Impressionist
and early Modern paintings.
In December 2004, the Court granted
permission to relocate the art gallery to
Philadelphia after finding that the Barnes, on the
brink of financial collapse, clearly and
convincingly showed the need to deviate from
the terms of the Indenture, and that the relocation
was "the least drastic modification necessary to
preserve the organization." In re The Barnes
Foundation, 2004 Pa. Dist. & Cnty. Dec. LEXIS
344; 69 Pa. D. & C.4th 129, 172 (C.C.P. Mont.
2004). In October of 2006, the Friends of the
Barnes, a group consisting of art students, alumni
and neighbors of the Barnes, requested the
Pennsylvania Attorney General to reexamine the
decision to relocate the gallery, based upon what
th e F rie n ds ch a ra c t er i z ed a s c h ang e d
circumstances and facts unknown at the time of
the decision in December of 2004. Local
government representatives of Montgomery
County also asked the Attorney General to re-
open the proceedings pertaining to The Barnes.
The Attorney General declined both requests,
consistent with the Attorney General's long-
standing support of the relocation of the gallery
to Philadelphia. Thereafter, the Friends and
Montgomery County, again citing new
information and changed circumstances, each
filed a petition to re-open the proceedings that
had resulted in the Court's decision to permit the
relocation. The new information consisted of
knowledge that a state budget bill, passed by the
state legislature and the Governor in 2002,
"contained a line item for approximately one
hundred million dollars for the purpose of
building a new facility to house The Foundation's
art collection." In re The Barnes Foundation,
No. 58,788, slip op. at 2 ( C.C.P. Mont., May 15,
2008). Neither the Court nor the public had been
aware of this information during the underlying
proceedings, leading to "a flurry of speculation"
that the Barnes' Trustees knew of the budget
item, but had concealed it from the Court during
the hearings on the petition to move the gallery
and its art program to Philadelphia.
The petitioners also requested re-opening on the
basis of a proposal by Montgomery County to
purchase the Barnes' land and buildings for about
$50 million, to be raised from the sale of tax-
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! SUMMER 2008, VOL. I, ISSUE NO. III
LAST LEGAL CHALLENGE TO THE RELOCATION
PLANS OF THE BARNES FOUNDATION?
By Sharon Erwin, Philadelphia
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! PAGE 11
exempt County-backed bonds, and to lease the
property back to the Barnes. In response to both
challenges, the Barnes, joined by the Attorney
General, requested dismissal of the petitions on
the ground that the petitioners lacked standing.
The Court concluded, consistent with past
decisions relating to the Barnes, that the Friends
of the Barnes lacked standing because "they had
no interest beyond that of the general public." In
so ruling, the Court rejected the Friends'
argument that the question of standing was so
"enmeshed" with the merits that dismissal was
inappropriate, an argument based on several
decisions of the U.S. Circuit Courts of Appeals.
The Court, despite characterizing the possibility
of exploring the merits of this argument "as
tempting," stated that it was bound by the recent
holding of the Pennsylvania Supreme Court in
Milton Hershey School, 590 Pa. 35, 911 A.2d
1258 (2006) ratifying "historical precepts" of
standing under Pennsylvania law, including:
• A party not negatively affected by the matter
sought to be challenged is not aggrieved, "and
thus, has no right to obtain judicial resolution" of
the challenge;
• A litigant is aggrieved when s/he can show a
substantial, direct, and immediate interest in the
outcome of the litigation;
• A litigant possesses a substantial interest if
there is a discernable adverse effect to an interest
other than that of the "general citizenry";
• Private parties generally lack standing to
enforce charitable trusts; and
• The Attorney General, a member of the
charitable organization or someone having a
special interest in the trust are those who may
bring an action to enforce a charitable trust.
These historical precepts also formed the basis
of another decision involving the Barnes in
which the Pennsylvania Supreme Court held:
In the absence of statutory authority, no person
whose interest is only held in common with other
members of the public can compel the
performance of a duty owed by the corporation to
the public. Only a member of the corporation
itself or someone having a special interest therein
or the Commonwealth, acting through the
Attorney General, is qualified to bring an action
of such nature.
Wiegand v. The Barnes Foundation, 97 A.2d 81,
82 (Pa. 1953)(finding that plaintiff, a member of
the public and an editorial writer for a local
newspaper, lacked standing, even with the
consent of the Attorney General, to prosecute a
claim that the Barnes so drastically limited public
access to the art gallery as to defeat the purposes
for which it was founded). In Wiegand, the court
found (1) the plaintiff's interest to be in common
with the general public; (2) an absence of
statutory authority permitting the plaintiff to
bring suit; and (3) an absence of statutory
authority allowing the Attorney General to
delegate the conduct or control of the lawsuit. Id.
at 83.
Expressly relying upon Hershey and implicitly
upon Weigand, the Orphans' Court concluded that
the Friends' disagreement with the Attorney
G e n e r a l ' s s u p p o r t o f t h e r e l o c a t i o n ,
notwithstanding the "intensity of concern", did
not provide the Friends with the requisite interest
to grant standing to re-open the proceedings. As
for Montgomery County, the Court concluded
that while it had "special interests" in the matter,
those interests were within the purview of the
Attorney General's office, and thus did not confer
standing on the County.
The County's special interests consisted of
"protecting historical resources and nurturing
economic welfare." The Attorney General's
office, however, protects the general public as
parens patriae and "there is no authority for a
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! SUMMER 2008, VOL. I, ISSUE NO. III
RELOCATION PLANS OF THE BARNES FOUNDATION
(cont’d)
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! PAGE 12
ART & CULTURAL HERITAGE LAW NEWSLETTER! WINTER 2008, VOL. I, ISSUE NO. 1
second sovereign to participate on behalf of a
subset of the general public." Slip Op. at 6.
When the Attorney General "acts to protect the
public interest in enforcing the terms of a
charitable trust, other Public Officers cannot be
permitted to intervene to perform that same
function." Id. at 7, citing Philadelphia Health
Care Trust, 872 A.2d 258, 262 (Pa. Commw.
2005).
Although the Court dismissed the petitions to
re-open the proceedings, it rejected the request of
the Barnes and the Attorney General to award
them their attorneys' fees as sanctions against the
petitioners for arbitrary, vexatious or bad faith
conduct. The Court ruled that the petitions were
filed in good faith, the new information was of
sufficient import that the attempt to re-open was
not arbitrary, and the petitioners' conduct did not
meet the legal definition of vexatious conduct.
None of the parties appealed the decision.
While many view the most recent decision in
the Barnes litigation as the last legal challenge to
the relocation, that may not be the case,
depending upon the outcome of elections to be
held this November. On August 13, 2008, John
Morganelli, the Democratic candidate for
Pennsylvania Attorney General, stated that he
would try to re-open the proceedings if elected
this November. Meanwhile, the Barnes
continues to move forward with its relocation
plans, having already selected the architects and
most recently the landscape architects for the
new facility in Philadelphia.
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! SUMMER 2008, VOL. I, ISSUE NO. III
RELOCATION PLANS OF THE BARNES FOUNDATION
(cont’d)
“Homage to Freyr Vilhelmsson, by Cristian DeFrancia
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! PAGE 13
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! SUMMER 2008, VOL. I, ISSUE NO. III
ON THE BEAT! COMMITTEE NEWS & EVENTS
By Lucille Roussiin, New York
Committee Lunch at the ABA Meeting in New
York
For the first time at the full ABA meetings there
was a luncheon for the many committees. The
Art and Cultural Heritage Committee was
represented by Co-Chair, Lucille A. Roussin.
Steering Committee member Sharon M. Erwin
came up from Philadelphia to the luncheon. First
time visitors to our committee table included Lisa
J. Savitt, Miriam Stern, Linda M. Brandon and
Bettina L. Hollis, a law student at St. John’s
University School of Law. Bettina has already
joined our committee and I look forward to
hearing from our other participants.
New Co-Chair Appointed
Jennifer Kreder has been appointed to take over
Cristian DeFrancia’s post as Co-Chair of the
Committee. Jennifer is a professor of law at
Salmon P. Chase College of Law at Northern
Kentucky and widely published in the area of
cultural heritage law. I look forward to working
with her as Co-Chair! After serving his two-year
term as Co-Chair, Cristian will continue to advise
the Committee and serve as Editor of the
newsletter. We’d also like to congratulate
Cristian on his recent appointment as a term
member of the Council on Foreign Relations.
Thanks for all your hard work Cristian and
congratulations! We are pleased to welcome
back Patty Gerstenblith, our former Chair, as a
Vice Chair on the Committee. Rick St. Hilaire
and Marilyn Phelan will continue to serve as Vice
Chairs of the Committee along with Patty.
Holocaust Conference in Jerusalem
A conference on “Justice Matters: Restituting
Holocaust-Era Art and Artifacts,” was held at the
Israel Museum, Jerusalem on May 19 -20, 2008.
The conference was arranged to complement
three outstanding exhibitions, “Orphaned Art:
Looted Art from the Holocaust in the Israel
Museum” and “Looking for Owners” featured art
works from France that remain unclaimed since
the end of World War II. Not all objects from
these repositories were on display, but the
exhibition catalogues are very well illustrated
and all the known information about the
provenance of the works is included in the text.
Among the speakers at the conference were
Shlomit Steinberg, Curator of European Art at
the Israel Museum, Amy Walsh, Curator of
European paintings at the Los Angeles County
Museum, Marc Masurovsky from the U.S.
Holocaust Memorial Museum in Washington,
D.C., and well know research scholars Willi
Korte of Maryland and Sophie Lillie from
Vienna.
The third exhibition, “Auktion 392” is a most
unusual one in that it is made up entirely of
reproductions of paintings sold under duress in
1937 at the Lempertz Auction House in Cologne.
Only two of the paintings have been located and
were the subjects of successful restitutions
through negotiations. Max Stern emigrated to
Montreal, where he succeeded in opening the
very successful Dominion Gallery. In his Will he
left a majority of his art to Concordia University
and McGill Universities in Montreal and the
Hebrew University, Jerusalem. The executors of
his estate established the Max Stern Art
Restitution Project and this exhibition was
sponsored by the beneficiaries.
Frontispiece from the Roman de la Rose, University of Notre Dame
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! PAGE 14
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! SUMMER 2008, VOL. I, ISSUE NO. III
Declaratory judgment actions filed by U.S.
museums against claimants of Nazi-looted art are
at the forefront of Holocaust-era litigation in the
United States. The extent of Nazi looting of art
has been well-documented. Much art was
aryanized in forced sales for prices significantly
below market value (if any value ever actually
materialized for the seller), and some was sold at
the infamous “Jew auctions” now universally
recognized as illegal, but quite a few sales were
legitimate. Some survivors were able to
voluntarily sell art on the open market, which in
some instances enabled them to obtain safe
passage for themselves and their families out of
Nazi territory. Nonetheless, because so many
were compelled to forfeit flight assets to pay for
their passage, it seems likely that the European
art market reflected depressed prices. Post-war
restitution legislation in Western Germany
presumed that all sales and transfers of property
from a Jew to a non-Jew after the enactment of
the Nuremberg laws in 1935 were forced sales
unless the purchaser (or subsequent good faith
purchaser) could demonstrate the sale was for
fair market value. The declaratory actions are
inviting U.S. judges to draw the line between
forced and voluntary sales – and to decide who
must bear the burden of proof.
The heirs of Margarete Mauthner, who asserted
a claim to Van Gogh’s Vue de l'Asile et de la
Chapelle de Saint-Remy against Elizabeth Taylor,
attempted to broaden legal grounds for restitution
to situations where it seemed that the painting
would not have been sold but for the rise of the
illegal Nazi regime to power. The case did not
discuss whether the painting had been sold for
fair market value. The court rather quickly
dismissed the heirs’ complaint on statute of
limitations grounds. The decision was affirmed
by the Ninth Circuit Court of Appeals on May
18, 2007. The United States Supreme Court
denied the claimant’s petition for a writ for
certiorari on October 29, 2007. Nonetheless, the
case has launched a small wave of claims
attempting to increase the number of artworks
subject to restitution because of their ownership
histories during World War II – even if those
histories would not seem to support a legal claim
under current case law.
Those receiving such demands, particulary U.S.
museums, have responded by filing declaratory
judgment actions in U.S. courts to quash the
claims and clarify legal title. First, two U.S.
museums faced with claims by the heirs of
Martha Nathan, the widow of Hugo Nathan, a
prominent Jewish collector from Frankfurt,
decided to file declaratory judgment actions to
resolve ownership of two paintings. Those
museums were the Toledo Museum of Art and
the Detroit Institute of Arts. The claimants’
arguments were similar to those in the Adler v.
Taylor case. This was the first time U.S.
museums decided to initiate litigation when faced
with demands for artwork by Holocaust survivors
or their heirs. The museums won both cases on
statute of limitations grounds.
Since then, more declaratory judgment actions
have been filed to ward off potential claims to
artworks with ownership histories showing a
transfer during the Nazi era – where the transfer
lacks certain indicia of looting, aryanization, or
forced auction. The claims are premised on the
idea that sales of paintings into the depressed art
market after Hitler’s rise to power in 1933 and
resulting economic oppression of Jews, should be
restituted because the sales would not have been
made but for the Nazis’ racial persecution of
Jews. According to the claimants, the concept of
DECLARATORY JUDGMENT ACTIONS AS TO ART
DISPLACED DURING THE HOLOCAUST
By Jennifer Anglim Kreder, Highland Heights, KY
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! PAGE 15
an illegal “forced sale” includes sales made
because of the economic pressure put on Jews by
the Nuremberg laws – not just those sales made
pursuant to a specific Nazi decree applicable to
the painting at issue or express threat of physical
harm for failing to transfer the specific painting.
First, the Museum of Modern Art and the
Solomon R. Guggenheim Foundation filed a
complaint for declaratory relief in the United
States District Court for the Southern District of
New York as to Pablo Picasso’s Boy Leading a
Horse (1906) and Le Moulin de la Galette (1909)
against Julius H. Schoeps. Both paintings’
ownership histories have in common original
ow n e r s h i p by Pa u l R o b ert Er n s t v o n
Men de lssoh n- Batho ld y an d sub se quent
ownership by Justin K. Thannhauser.
Mendelssohn-Batholdy was “a prominent and
affluent German banker and art collector,
patriarch of one branch of an extraordinarily
distinguished German family of Jewish descent,
representative of that branch of the family as a
director of Mendelssohn & Co. Bank, and
proprietor of the ancestral estate outside of
Berlin, Schloss Börnicke.” In 1927, he married
his second wife, Elsa Lucy Emmy Lolo von
Lavergue-Peguilhen (later Countess Kesselstatt),
who was not Jewish. The Museums allege that
Mendelssohn-Batholdy gave the paintings to his
second wife as a wedding gift in 1927, and hence
the paintings were excluded from his will, which
was executed by his estate in May 1935 after his
death from heart problems.
Schoeps maintains that Mendelssohn-Batholdy
never gifted the paintings to his second wife.
Schoeps maintains that after the Nuremberg laws
began to devastate Mendelssohn-Batholdy’s
wealth, he secretly sent the paintings on
commission to Thannhauser in Switzerland.
Further, Schoeps maintains that Mendelssohn-
B a t h o l d y d i e d u n e x p e c t e d l y o f h e a r t
complications never having told anyone about his
secret. Schoeps points to interesting
documentation from the Thannhauser files to
support his argument that Thannhauser either
stole the paintings after Mendelssohn-Batholdy’s
death or bought them for a price far below
market value.
Thannhauser was a prominent Jewish art dealer
in Berlin who fled Germany in 1937. He
continued as a prominent art dealer and collector
in Paris and then New York until his death in
1976. After the war, Thannhauser actively
sought return of many artworks on behalf of
himself and those who had consigned works to
him. After his death, Thannhauser’s extensive
records were archived to assist in future
restitutions. And much of his art collection was
donated to the Museum of Modern Art.
Thannhauser was an active purchaser of art
from European Jews at least through 1939. For
example, Thannhauser was one of the three
Jewish art dealers who purchased The Diggers
(1899) and Street Scene in Tahiti (1891) from
M s . N a t h a n i n 1 9 3 8 . A d di t i o n a l l y,
Thannhauser’s name was in the ownership
history of Picasso’s Femme en Blanc (1922),
which was recently restituted from Art Institute
of Chicago benefactor Mrs. Marilynn Alsdorf to
Thomas Benningson. Benningson is the
grandson of Ms. Carlota Landsberg who had sent
the artwork to Thannhauser in Paris for
safekeeping in or around 1939. Thannhauser’s
name was listed in connection with the painting
in the 1947 list of wartime art losses in France,
the Repertoire des Biens Spolies En France
Durant La Guerre 1939-1945. After a
prospective purchaser of the painting ran a search
in the Art Loss Register in 2001, Thannhauser’s
archives were then checked, and the correct
owner revealed.
Schoeps’ suit compels one to ask whether
Thannhauser’s purchases should be viewed as
benevolent acts, neutral business or immoral
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! SUMMER 2008, VOL. I, ISSUE NO. III
DECLARATORY JUDGMENTS (cont’d)
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! PAGE 16
profiteering. Schoeps plainly states:
“Thannhauser trafficked in stolen and Nazi-
looted art during his career as a dealer. Both
during and after World War II, Thannhauser
partnered with art dealers such as Nazi Cesar
Mange de Hauke and Albert Skira, both of whom
the U.S. State Department and others identified
as traffickers in Nazi-looted art.” No doubt
Thannhauser’s family would vehemently deny
the allegation that Thannhauser acted immorally,
particularly in light of his post-war efforts to
assist Jews seeking restitution of works sent to
him on commission. But this is not the first time
accusations regarding Thannhauser’s wartime
conduct have been made. Logically, Schoeps
lacks any documentational evidence as to his
views that Mendelssohn-Batholdy never gifted
the paintings to his second wife and only secretly
sent the paintin gs to T han nhauser on
commission. Schoeps states:
The Museums’ claims that Mendelssohn-
Bartholdy gifted all his art collection to Elsa in
1927 at the time of their wedding is far-fetched.
There is no record of such a gift any time near
the wedding. Indeed, the only evidence of any
Mendelssohn-Batholdy transfer of art to Elsa is
Mendelssohn-Bartholdy’s February 1935
Contract for the Disposition of Property, which
Schoeps will establish was a mere device to
protect the Paintings from Nazi predation by
creating a false impression that Elsa was the
owner from 1927 forward.
Schoeps describes the sale as “a textbook
example of a ‘fencing’ operation for stolen
merchandise and a conspiracy to traffic in stolen
art.” Additionally, the Art Loss Register’s letter
provided to the Museum of Modern Art in the
course of its provenance research, which states in
part:
Paul von Mendelssohn – Bartholdy, Berlin
might have been related to Francesco
Mendelssohn, whose collection underwent a
forced sale. The Thannhauser archives are
in Geneva now, and the name generally does
not mean good things. Sigfried Rosengart
records are now in Lucerne, Switzerland. It
might be worth checking with them to get a
date of sale, as Albert Skira is a red flag list
name, although it might be alright as the
painting went to New York so early on.
[The next 1.5 pages are redacted, but it is not
stated by whom or why] [Remainder omitted by
author.]
Schoeps relies, in part, on William S. Paley, As
It Happened, A Memoir by William S. Paley,
Founder and Chairman, CBS (1979), for the
following rendition of the sale in 1936:
Thannhauser, while peering through a
window outside watching the sale go down –
used Swiss art dealer Albert Skira (who later
developed a reputation as a notorious
trafficker in Nazi-looted art) to make the
sale to Paley in Switzerland, already widely
known as a venue for unloading Nazi-looted
art. In addition, Skira seemed desparate to
make the sale. He and Thannhauser were
offering Boy Leading a Horse for an
artificially low price, and Skira even refused
to tell Paley who the owner was. Yet,
somehow the “modest” price for Boy
L e a d i n g a H o r s e e n a b l e d S k i r a ,
Thannhauser – and possibly another dealer,
Rosengart – to make enough of a profit that
it was worth driving the entire length of
Switzerland through the Alps to make sure
the sale occurred. . . . . Moreover, any time
Tha n nha u ser was a s ked a b o ut t h e
provenance of these five significant Picasso
artworks he obtained from the well-known
Mendelssohn-Bartholdy, Thannhauser was
uncharacteristically vague and non-specific.
For example, in 1964 when he sold Madame
Soler to the Pinakothek der Moderne
Museum in Munich, Thannhauser provided
detailed information regarding the history of
Madame Soler. However, when it came
time to [provide] past owners (provenance),
Thannhauser merely inserted “Sammlung
(collection) Paul von Mendelssohn-
Bartholdy” without providing any dates –
the only entry on the page with no dates.
When Thannhauser donated Le Moulin de la
Galette and Head of a Woman to the
Guggenheim, he was equally vague.
Thannhauser stated that he acquired Le
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! SUMMER 2008, VOL. I, ISSUE NO. III
DECLARATORY JUDGMENTS (cont’d)
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! PAGE 17
Moulin de la Galette from Mendelssohn-
Bartholdy “ca. [around] 1935.”
As the parties have opposing views of the
evidence, which party bears the burden of proof
in the litigation will be extremely important.
Schoeps’ Answer lays out the legal theories
supporting his expansive view of the term
“forced sales” and how, in his view, the
applicable law requires a presumption of this
classification as to all transfers of property from
a Jew to a non-Jew in Nazi Germany between
1933 and 1945. Such a presumption would mean
that the museums must bear the burden of proof
in the litigation. The museums’ Complaint tries
to head off this argument:
Even if there were such a presumption of
duress, that presumption is rebutted by the
evidence. The facts and circumstances
establish that both von Mendelssohn-Bartholdy
and his wife were free to decide whether or not
to sell their artwork, were free to move artwork
in and out of Germany without discrimination,
were not under financial pressure to sell as the
Paintings represented a negligible percentage of
their net worth, and neither the German State
nor the Nazi party played any role in directing,
urging or otherwise threatening any adverse
consequences if the Paintings were not sold to
Thannhauser. . . . . The allegation that the Nazi
government would force von Mendelssohn-
Bartholdy and his wife to sell their Paintings to
the Jewish art dealer Thannhauser, whom they
knew and with whom they had done business
for years, is completely implausible, as is the
claim that they had to sell the Paintings because
Nazi persecution left them impoverished.
At this point, the case is still in its incipient
stages, with the court recently having denied
Schoeps’ motion to dismiss. The court likely will
look at statute of limitations and laches issues
next, which in light of the cases against the Ullin
heirs, do not bode well for Schoeps.
Meanwhile the Museum of Fine Arts in Boston
filed a declaratory judgment action in the United
States District Court for the District of
Massachusetts. This case concerns a preliminary
claim to Oskar Kokoschka’s Two Nudes (Lovers)
(1913) made by Dr. Claudia Seger-Thomschitz,
and the facts seem to be ambiguous. The
museum alleges that the sale by Dr. Oskar
Reichel, a Jewish doctor, art collector and owner
of a Viennese gallery that was Aryanized after the
Anschluss of Austria into the Third Reich on
March 12, 1938, was voluntary. The purchaser
of the painting (and three other Kokoschka
paintings) was Otto Kalir, a Viennese art dealer
who had moved to Paris by the time of the sale in
February 1939. The museum alleges that Reichel
and Kallir had known each other for many years
and often had done business together. Reichel
died in Vienna of natural causes in 1943.
When Reichel’s son via a Viennese lawyer
asserted post-war restitution claims to Reichel’s
art collection, he never sought recovery of the
Kokoschka paintings. Two Nudes (Lovers) was
subsequently purchased by another dealer and
sold to Sarah Blodgett in late 1947 or early 1948,
and she bequeathed it to the museum upon her
death in 1972. It has been publicly displayed
since.
Seger-Thomschitz makes factual allegations
that, if proven, could provide the court with
sufficient grounds to clarify the line between
forced and voluntary sales, as well as refine
courts’ statute of limitations and laches analysis
in such cases. Seger-Thomschitz argues that
because of the dispersal of the family resulting
from Nazi persecution, including the murder of
one of Reichel’s sons in 1940 or 1941, it is
excusable that the son pursuing post-war
restitution did not know of his father’s claims to
the Kokoschka paintings. Another son, Hans,
fled Austria by June 1938. A third son, Raimund,
fled in March 1939. In November 1938,
Reichel’s art gallery, including its paintings
which were mostly by Romako, was liquidated
because of his Jewish heritage. The family’s
apartment house was liquidated in 1941.
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! SUMMER 2008, VOL. I, ISSUE NO. III
DECLARATORY JUDGMENTS (cont’d)
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! PAGE 18
Reichel’s wife, Malvine, was deported to
Therensiestadt in January 1943 where she
survived the war and eventually joined Hans in
the United States.
The brothers’ post-war restitution application
included a notarized statement by Raimund
asserting: “A large art collection [owned by my
father] was sold by force: 47 pictures by the
painter Anton Romako.” No mention was made
of the Kokoschka paintings. Seger-Thomschitz
explains this omission as follows: Because Dr.
Reichel died after his wife was deported to
Therensiestadt and his sons had fled, the sons
could only go by memory and did not know
about the Kokoschka paintings because they
lacked access to Austrian records containing the
Property Declaration on which Reichel was
forced to declare all of his assets in June 1938.
They were made public to academics in 1993 for
the first time, and Raimund died in 1997 at 94
years of age.
Significantly, Exhibit 1 of the Answer shows
that Seger-Thomschitz herself was put on notice
to investigate any remaining claims of Reichel’s
heirs to art when the Vienna Community Council
for Culture and Science contacted her upon its
own more recent review of Viennese public
collections. In a November 10, 2003, letter to
Seger-Thomschitz expressing its conclusion that
it must restitute certain Romako paintings, it
noted as follows:
In January 1939, Vita Künstler, whom Otto
Kallir, after his escape to the USA, had
appointed as director of the “New Gallery” . . .
approached the Municipal Collections with
offers of “particularly high-quality pictures by
Romako,” whom [sic] she “just so happened to
have in the gallery.” Thereafter, the Municipal
Collections acquired five paintings by Anton
Romako. . .
It is certain that these paintings involved art
objects from the property of Dr. Oskar Reichel
and which, in connection with the power
seizure by National Socialism, he had to sell
due to his persecution as a Jew to the galleries
mentioned . . . . .
The letter mentions that as to the paintings on
the Property Declaration, “only small equivalent
amounts were deposited in blocked accounts.”
Seger-Thomschitz argues that the fact that the
Romako paintings were transferred to Kallir with
payment transferred into blocked accounts is
evidence of what likely happened in regard to the
Kokoschka paintings. But, the Answer and
Counterclaim do not clearly allege that the
proceeds of the sale of the Kokoschkas actually
went into a blocked account.
If the allegation holds out, then the court could
find in favor of the claimant without the need to
adopt a new theory of recovery. The key
difference between the Romako paintings and the
Kokoschka paintings is that Kallir managed to
get the Kokoschka paintings out of Vienna.
Thus, what must be determined is whether Kallir
and Reichel managed to defeat Nazi attempts to
steal the Kokoschka painting and actually
reached a voluntary sale for an amount close to
fair market value – or whether Kalir alone or in
conjunction with Viennese Nazis stole the
painting.
The claimant, however, advocates for an
aggressive burden of proof shift in all cases
claiming art transferred during the Nazi era.
Holding more than sixty years after the war that
no sale by a Jew in Nazi territory could possibly
be considered voluntary as a matter of law would
lay the groundwork for an unmanageable
caseload for courts. A less grand legal theory,
such as implementing a presumption of forced
sale as to transfers at significantly below market
price after passage of the Nuremberg laws, might
be manageable.
Should the judges deciding the new cases allow
them to move beyond the statute of limitations
and laches phases, these cases may lay further
precedent for drawing the line between a forced
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! SUMMER 2008, VOL. I, ISSUE NO. III
DECLARATORY JUDGMENTS (cont’d)
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! PAGE 19
versus a voluntary sale in the context of Nazi
persecution. The first case in the United States
to do so was Vineberg v. Bissonnette, which is
now up on appeal. The facts involved such a
clear-cut forced sale, at an infamous “Jew
auction” now universally recognized as illegal,
such that the court found it easy enough to grant
summary judgment for the plaintiff, a relatively
rare occurrence in U.S. courts.
Any precedent set most likely would not favor
claimants of art sold at close to fair market value
when there is no evidence of looting or a direct
link between the sale of the specific asset and a
specific Nazi decree compelling its aryanization
or auction. But, it should cause courts to look
more closely to determine whether seemingly
voluntary transfers were in fact forced sales
engineered to look voluntary, to which Military
Law 59 and parallel national restitution laws
called attention immediately after the war.
Whether the court also shifts the burden of proof
when the evidence points to the possibility of
such a sale will be a key factor in its outcome.
Versions of this article are to be printed in the
IBA Art, Cultural Institutions and Heritage Law
Committee e-bulletin and the Kunstrechtspiegel
e-journal of the Instituts für Kunst und Recht in
Heidelberg, Germany.
AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW! SUMMER 2008, VOL. I, ISSUE NO. III
DECLARATORY JUDGMENTS (cont’d)
subject to repatriation demands. On the other
hand, the market for antiquities is such that the
majority of available antiquities lack a
satisfactory ownership history. A collector could
purchase very little if he or she required evidence
of pre-1970 export.
Thus, a probable result of the AAMD
guidelines is that dealers will offer even less
information about the provenance of the
antiquities they sell than they did before. In this
case, all antiquities on the market will fall into
the exception, and museums can purchase them.
Several studies by the archeologists David Gill
and Christopher Chippendale have already shown
that most antiquities in American collections lack
any provenance information whatsoever – and
the AAMD guidelines may help to increase this
number of antiquities without context.
AAMD GUIDELINES (cont’d from first page)
“The Red Bird,” by Millar Kelley
