EU Holocaust Era Assets Conference and State Department Town Hall Follow-Up

As one of its last acts as EU President, the Czech Republic held a Holocaust Era Assets Conference in Prague from June 26-30, 2009. Attended by 47 country delegations, 148 organizations, and a representative of the Holy See, the conference met, in part, to evaluate progress since the 1998 Washington Conference on Holocaust-Era Assets (http://www.holocausteraassets.eu/).

Secretary Clinton appointed Ambassador Stuart E. Eizenstat to head the distinguished 24-member U.S. Delegation. Clinton also appointed Ambassador J. Christian Kennedy, Head of the State Department’s Office of Holocaust Issues, as Special Envoy for Holocaust Issues (http://www.state.gov/r/pa/prs/ps/2009/06a/125167.htm).

Among the many conference events, five working groups (Holocaust Education, Remembrance and Research, Immovable Property (Private and Communal), Looted Art, Judaica and Jewish Cultural Property, and Special Session - Caring for Victims of Nazism and Their Legacy) presented expert panel presentations.

When all was said and done, 46 country delegations signed the Terezin Declaration, a non-binding commitment to further progress regarding: (1) the welfare of Holocaust survivors, (2) real property restitution or compensation, (3) the identification and protection of Jewish cemeteries and burial sites, (4) the resolution of claims for restitution of Nazi-confiscated and looted art and other cultural property, (5) Judaica and Jewish cultural property protection and claim resolution, (6) improved archival access, (7) education, remembrance, research, and memorial sites, and (8) the formation of the European Shoah Legacy Institute in Terezin (http://www.state.gov/p/eur/rls/or/126162.htm).

As a follow-up to the Prague EU Conference, the State Department held a Town Hall meeting on September 22, 2009. Emerging issues discussed included the creation of alternative mechanisms to fairly resolve Holocaust Era assets claims, including the possible formation of a national commission or panel, with representatives from the various stake holders, as well as scholars and other experts in the field. Such a commission might facilitate provenance and genealogical research as well as the informal analysis and resolution of such disputes, in an effort to avoid prolonged and expensive litigation. A Congressional hearing regarding these and other related matters is tentatively scheduled for October 29, 2009, under the leadership of Representative Robert Wexler, Chair of the Committee on Foreign Affairs, Subcommittee on Europe.

Carla Shapreau
Visiting Scholar, Institute of European Studies
University of California, Berkeley

Announcing Winners of the 2009 Student Writing Competition in Cultural Heritage Preservation Law

The Lawyers’ Committee for Cultural Heritage Preservation (LCCHP) is pleased to announce the winners of its 2009 annual student writing competition, sponsored by Andrews Kurth LLP. The first-place winner is Amelia Sargent of Stanford University Law School for a paper entitled “New Jurisdictional Tools for Displaced Cultural Property in Russia: From ‘Twice Saved’ to ‘Twice Taken.’” The second-place winner is Melanie Greer of DePaul University College of Law for her paper entitled “Deaccessioning: A Necessary Evil?” An honorable mention went to “The Limits of the Law: The Impact of the 1970 UNESCO Convention on the Trade in Illicit Cambodian Antiquities,” by Terressa Davis of the University of Georgia.

Both winning papers will be published in the 2010 Yearbook of Cultural Property Law. The finalist paper, “Complying with NAGPRA’s Pesticide Provision: A Best Practice Guide” by Lydia Grunstra of American University Washington College of Law will also be published in the next issue of the Yearbook.

Due to the generosity of Andrews Kurth’s D.C. office, the first-place winner will receive an award of $1000 and the second-place winner will receive an award of $500. This is the fifth annual LCCHP competition, and it attracted twenty-six entries from nineteen law schools, the largest numbers of entries and law schools represented in any prior competition. We also want to thank this year’s writing competition selection committee, chaired by Sherry Hutt, and including Ricardo St. Hilaire, Lucille Roussin and Gillian Bearns.

For the third year, LCCHP is pleased to partner with Andrews Kurth in offering this competition as a means of expanding the teaching of cultural heritage preservation law in U.S. law schools. LCCHP is a nonprofit organization of lawyers, law students and interested members of the public who have joined together to promote the preservation and protection of cultural heritage resources in the United States and internationally through education and advocacy.

For more information on the annual Student Writing Competition and the other activities of the LCCHP, please visit our website at http://www.culturalheritagelaw.org/.

Ninth Circuit Issues Decision in Von Saher v. Norton Simon Museum of Art

Ninth Circuit Strikes Down California's Holocaust Era Statue of Limitations in Von Saher v. Norton Simon Museum of Art, but Permits von Saher to Proceed on Other Grounds – Petitions for Rehearing Pending

On August 19, 2009, the United States Court of Appeals for the Ninth Circuit issued its opinion in Marei von Saher v. Norton Simon Museum of Art at Pasadena, 578 F.3d 1016 (9th Cir. 2009), striking down as unconstitutional California's unique Holocaust Era statute of limitations, Code of Civil Procedure section 354.3. This statute permitted suit against a museum or gallery for the recovery of Holocaust Era artwork if commenced on or before December 31, 2010, arguably permitting claims that might have expired under California's general three-year statute of limitations.

Although the court held that section 354.3 "does not conflict with any current foreign policy espoused by the Executive Branch," it nevertheless was found unconstitutional under a field preemption analysis, because it infringed on a foreign affairs power reserved by the Constitution exclusively to the federal government. The Ninth Circuit pointed out that "the relevant question is whether the power to wage and resolve war, including the power to legislate restitution and reparation claims, is one that has been exclusively reserved to the national government by the Constitution. We conclude that it has."

The dissenting opinion by Judge Pregerson asserts that the majority read the statute too broadly by concluding that section 354.3 created a world-wide forum for resolution of Holocaust restitution claims and that the statute applied to any museum or gallery, when in fact it is limited to only those entities subject to the jurisdiction of the State of California. Judge Pregerson also remarked that section 354.3 does not provide for war reparations, but rather constitutes a regulation over property within the state's jurisdiction, a subject that is traditionally and appropriately a state function.

Although the majority cut off one avenue for von Saher, it opened another by ruling that the trial court erred when it held von Saher's claim time-barred under California's general statute of limitations, Code of Civil Procedure section 338(3), which is applicable to pre-1983 claims for the recovery of stolen art and other personal property. The Ninth Circuit noted that "[f]rom the face of Saher's complaint, it is not clear that the statute of limitations has expired . . . Saher's complaint should not have been dismissed without leave to amend." The case has been remanded to the trial court for further proceedings.

It is worth nothing that the California Supreme Court has not yet ruled on what standard governs the accrual of a claim to recover artwork stolen or converted before 1983, under section 338(3), although this standard has been addressed in two California appellate court decisions. Recognizing this, the Ninth Circuit pointed out that it was bound to apply a constructive discovery accrual rule under its prior opinion in Orkin v. Taylor, 487 F.3d 734, 741 (9th Cir. 2007), which held that a constructive discovery rule would be consistent with California Supreme Court precedent. Under this standard, "Saher's cause of action began to accrue when she discovered or reasonably could have discovered her claim to the Cranachs, and their whereabouts." The court noted that it could only reconsider earlier Ninth Circuit precedent by en banc review or after an intervening Supreme Court decision.

Petitions for rehearing and rehearing en banc were filed by both von Saher and the Norton Simon Museum in September 2009. Amicus briefs were filed in early October by the State of California and EarthRights International. Therefore, California's unique Holocaust Era statute of limitations may still be resuscitated, if only until it expires by its own terms at the end of 2010.

Carla Shapreau
Visiting Scholar, Institute of European Studies
University of California, Berkeley

Conference: "Culture and Conflict: The United States and the 1954 Hague Convention"

In March 2009, the United States ratified the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict raising serious questions about implementation and next steps for the U.S. military and for this country generally. The Lawyers' Committee for Cultural Heritage Preservation and U.S. Committee of the Blue Shield present a conference, "Culture and Conflict: The United States and the 1954 Hague Convention," to consider the domestic and international ramifications of U.S. ratification. The conference will begin with an evaluation of the continuing efforts to restitute art works looted during the Holocaust and not recovered in the immediate aftermath of World War II, particularly in light of the June 2009 Prague conference on the status of restitution efforts throughout Europe and the United States. The program will then turn to what government organizations, particularly the U.S. military, are doing to ensure compliance with the Hague Convention and to avert or mitigate cultural damage in future conflicts. The final panel will discuss what more the U.S. must do to protect its own cultural heritage in event of conflict, the prospects for future ratification of the Hague Convention's First and Second Protocols, and the role of the Hague Convention ratification within U.S. public and cultural diplomacy.

The conference will be held on Friday, October 23, 2009, at the National Museum of Women in the Arts in Washington, D.C. Confirmed speakers include:

Lynn Nicholas, author of Rape of Europa: The Fate of Europe's Treasures in the Third Reich and the Second World War
Monica Dugot, Senior Vice-President and International Director of Restitution, Christie's, New York
Robert Edsel, author of The Monuments Men: Allied Heroes, Nazi Thieves, and the Greatest Treasure Hunt in History
Patty Gerstenblith, President, Lawyers' Committee for Cultural Heritage Preservation, and Distinguished Research Professor, DePaul University College of Law
Karl von Habsburg, President, Association of National Committees of the Blue Shield, and Cultural Property Protection Officer, Austrian Army
Richard Jackson, Special Assistant to the Judge Advocate General for Law of War Matters and Colonel (Ret.), U.S. Army
Thomas R. Kline, Partner, Andrews Kurth LLP and Assistant Professorial Lecturer, George Washington University, Museum Studies Program
Hays Parks, Deputy General Counsel for Law of War Matters in the Department of Defense General Counsel's Office and Colonel (Ret.) U.S. Marine Corps
Corine Wegener, President, U.S. Committee of the Blue Shield; Associate Curator, Decorative Arts, Textiles, and Sculpture at The Minneapolis Institute of Arts, andMajor (Ret.) U.S. Army Reserve
Nancy Yeide, Head, Department of Curatorial Research, National Gallery

The Lawyers' Committee will hold its first members meeting and a reception at the National Trust for Historic Preservation the afternoon of Thursday, October 22.

A full program and registration for the conference will be available on the LCCHP website, culturalheritagelaw.org, on September 24, 2009.

Lucille Roussin to Speak at Holocaust Era Assets Conference

The Holocaust Era Assets Conference is convening in Prague this weekend. The opening ceremony is scheduled for 6pm Friday, June 26, and the conference will run through Tuesday, June 30. LCCHP Board member Lucille A. Roussin is one of the invited speakers and will give a presentation on Jewish ceremonial objects looted during WWII and distributed to Jewish communities afterwards by Jewish Cultural Reconstruction. Many of the objects are problematic because they are identifiable to either existing Jewish communities or private families and should be restituted. More information is available at the conference webpage: http://www.holocausteraassets.eu/.

U.S. Prepares for June “Holocaust Era Assets” Conference in Prague

Early last month, Ambassador J. Christian Kennedy, the U.S. State Department’s Special Envoy for Holocaust Issues, for the second time met in Washington, D.C. with key stakeholders in the movement for restitution of works of art looted by the Nazis—including museum representatives, claimants, and attorneys specializing in Nazi-era art litigation—in preparation for the June 26-30 international conference “Holocaust Era Assets” taking place in Prague. The purpose of the Prague conference is to analyze the progress made in the wake of the landmark 1998 Washington Conference, which developed principles for resolving Holocaust asset issues, including claims regarding Nazi-confiscated works of art, and to improve upon current research and restitution practices.

One of the key issues of the meeting concerned the potential establishment of a U.S. national commission to assist in the resolution of claims to Nazi-confiscated works of art and what role such a body would play in the international community. As one participant noted, claimants’ first actions toward restitution are often ad hoc and therefore quickly break down into adversarial conflict; a national commission or other structured means for expediting the processing of claims would lead to an increased number of just and fair results. Museum representatives suggested that a new institution is not warranted because the success of mediation results in only a minority of claims reaching the litigation stage. One suggestion was the establishment of a national version of New York’s Holocaust Claims Processing Office, which assists claimants in research and recovery efforts. A national entity, whether in the form of a commission or modeled after New York’s HCPO, would be a monumental step for claimants, who often face barriers such as the high cost of research when pursuing claims on their own, and it could play an important role as an example for other nations to follow.

Most at the Washington meeting were of the mindset that a primary objective of the Prague conference should be to convince countries to improve upon the means for reaching the merits of the asset-theft claims, which are often countered on statute of limitations or similar legal grounds that would otherwise result in their dismissal early in the litigation process or generally prevent restitution on technical rather than equitable grounds. There were also calls for more resources for provenance research and disclosure of available information to both sides in contested claims.

In his concluding remarks, Stuart Eizenstat, the former U.S. Ambassador to the European Union who will head the U.S. delegation to the Prague conference, underscored the importance of maintaining a perspective that “steps back…and looks at the seminal event itself and the theft that accompanied it; everything else flows from that.” He continued, “I think the important point is that everyone who has come in this room, with very disparate ideas, and disparate interests and representations, has been very constructive in trying to come to the core issue of achieving justice in an expeditious way.”

Belgium Ratifies the 1970 UNESCO Convention

Last month, Belgium became the 117th country to ratify the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.  The Convention will enter into force for Belgium on June 30, 2009.  Belgium is one of a growing number of European antiquities-market countries that have taken steps toward restricting the movement of looted antiquities through their borders – Norway ratified the Convention in 2007, Germany ratified the Convention and passed implementing legislation in 2007, and the Netherlands is considering a bill that would ratify and implement both the 1970 UNESCO Convention and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. 

Belgium’s instrument of ratification limits the definition of “cultural property” under the Convention to the terms of the “Annex to Council Regulation (EEC) No 3911/92 of 9 December 1992, as amended, on the export of cultural goods and in the Annex to Council Directive 93/7/EEC of 15 March 1993, as amended, on the return of cultural objects unlawfully removed from the territory of a Member State.”  At this time, there is no further information available as to how Belgium will implement the Convention.