This article considers the legal difficulties associated with the restitution of looted-art, keeping a specific focus on the return of archaeological artifacts and antiquities. Can legal claims satisfy quickly and effectively the need of... more
This article considers the legal difficulties associated with the restitution of looted-art, keeping a specific focus on the return of archaeological artifacts and antiquities. Can legal claims satisfy quickly and effectively the need of the parties to settle an art-dispute? Has a tribunal the right expertise on such a specific matter? The attentive analysis of the art market evidences the percentage of illicit trade on art, which reached up to US$ 9.1 billion in 2017. Although government authorities do always keep an eye on looted artifacts, the theft of art and antiquities cannot be easily identified by an interested buyer. A few international databases, such as The Art Loss Register, Carabinieri’s Leonardo or the INTERPOL one are increasingly developing their services and offering the general public specific tools to research looted artifacts. In this scenario, the international, European and national legal framework are also adjusting to cope with art looting and to offer a common solution between different States. Though, legal claims are lengthy, expensive and not always available because of the difference in the substantive law of diverse countries. Alternative Dispute Resolution (ADR) methods, such as arbitration, mediation or negotiation seem to offer a better solution to the conflicts arising on looted art.
Many current disputes over cultural property resulted from war confiscations during the nineteenth-century international warfare. India demands the return of the Kohinoor diamond from the United Kingdom while China attempts to recover... more
Many current disputes over cultural property resulted from war confiscations during the nineteenth-century international warfare. India demands the return of the Kohinoor diamond from the United Kingdom while China attempts to recover copper animal heads seized by the British and French armies. Do these states have legal rights under customary international law (CIL) to recover looted artifacts today when current conventions are not applied? Scholars often argue that such claims have no basis in CIL. However, this article questions their conclusions because they retroactively apply the current CIL-making approach to determine whether any CIL rules existed in the nineteenth century. Instead, this article uses the intertemporal law approach to first identify the contemporaneous CIL-making criteria in the seventeenth through twentieth centuries, and then apply these tests to trace the evolution of the CIL rules against wartime looting of cultural property. I argue that CIL has prohibited such practices and provided restitution as the primary remedy in circumstances of violations since the Please do not circulate it 2 nineteenth century. This right to restitution has been established as a general rule that should be applied to all states rather than only Western "civilized nations." Moreover, the passage of over 150 years since the time of removal will not inhibit claims for restitution, so long as the plundered artifacts still exist and are identifiable. This article provides an original interpretation of CIL-making in the law of war in respect of cultural property and convincingly paves the legal grounds for claiming historically looted cultural property today.
Tradução do discurso de aceitação do Prêmio Gerda Henkel 2018 que foi entregue a Achille Mbembe no dia 8 de outubro de 2018 em Düsseldorf, na Alemanha. Publicado originalmente na revista Analyse Opinion Critique (AOC) no dia 5 de outubro... more
Tradução do discurso de aceitação do Prêmio Gerda Henkel 2018 que foi entregue a Achille Mbembe no dia 8 de outubro de 2018 em Düsseldorf, na Alemanha. Publicado originalmente na revista Analyse Opinion Critique (AOC) no dia 5 de outubro de 2018.
"A questão da restituição da arte africana pilhada pelos ocidentais é objeto de debates cujos termos devem ser esclarecidos. Pois as obras de arte africanas não têm apenas um valor material, mas também cosmológico: elas transcendem a distinção entre objeto e sujeito; traduzem uma vontade de se inserir no mundo no intuito de participar dele e prolongá-lo, ao invés de dominá-lo e assujeitá-lo. A restituição não poderia então ser simplesmente material: como atenuar o empobrecimento simbólico acarretado pelas pilhagens? Isso seria remediável?"
The author seeks to set out a criticism of the alleged innovations brought about by the 1939 Italian law on the ‘Protection of objects of artistic or historical value’. The law came in those years during which Fascist authorities... more
The author seeks to set out a criticism of the alleged innovations brought about by the 1939 Italian law on the ‘Protection of objects of artistic or historical value’. The law came in those years during which Fascist authorities struggled to keep on national soil a great deal of cultural property, which belonged to those who were trying to flee Italy following the harshening of persecutory regulations. Yet, scores of valuable public and private works of art had been reaching Nazi top brass following the Italian government’s own initiative. This eventually hindered the legitimacy of part of the cultural restitutions granted to Italy by the Allied military authorities after 1945.
German abstract: Spätestens seit Präsident Macrons Rede in Ouagadougu im Jahr 2017 ist für europäische Staaten die Frage unausweichlich geworden, ob und in welchem Umfang Kulturgüter aus ehemals abhängigen Territorien zu restituieren... more
German abstract: Spätestens seit Präsident Macrons Rede in Ouagadougu im Jahr 2017 ist für europäische Staaten die Frage unausweichlich geworden, ob und in welchem Umfang Kulturgüter aus ehemals abhängigen Territorien zu restituieren sind. Gleichzeitig mehren sich Zweifel an der Bedeutung juristischer Provenienzforschung. Da die Prinzipien der Intertemporalität zur Anwendung „ungerechten“ Rechts zwängen, sei eine politische Lösung vorzugswürdig. Doch wohin sollen politische Lösungen führen, sofern Machtungleichgewichte fortbestehen? Dieser Beitrag untersucht daher das Potenzial einer aus postkolonialer Perspektive betriebenen juristischen Provenienzforschung. Diese Perspektive hinterfragt nicht nur faktische Fehlvorstellungen, die einen Einfluss auf die Anwendung des Kolonialrechts hatten. Sie spürt auch seiner Kontingenz und Ambiguität nach, die aus dem untauglichen Versuch resultiert, Unterdrückung durch Recht zu legitimieren. Im Ergebnis stellt sich das Kolonialrecht als weit weniger monolithisch dar. Seine offenen Stellen können in einer Weise geschlossen werden, welche die weitere Entwicklung des Rechts bis in die Gegenwart in die Auslegung einbezieht. Der Beitrag expliziert sodann diese Methode anhand des Pergamonaltars, der Büste der Nofretete sowie von Artefakten aus dem heutigen Namibia. In jedem dieser Fälle bestehen gewichtige Zweifel an der Rechtmäßigkeit des Erwerbs. Die Fallstudien deuten darauf hin, dass die gegenwärtige Rückgabepraxis sich eher nach der kulturellen Bedeutung des Gegenstands für Deutschland denn nach rechtlichen Kriterien richtet. Praktiken der Selbst- und Fremdzuschreibung scheinen die gegenwärtige Rückgabepraxis zu dominieren.
English abstract: Since President Macron‘s speech in Ouagadougu in 2017, European states can no longer avoid the question as to whether and to what extent cultural artefacts from formerly dependent territories should be restituted. At the same time, doubts about the role of law in this debate increase. Since the principles of intertemporal law would necessitate the application of legal rules from the past considered today as “unjust”, many advocate setting aside the law and finding political solutions. But what to expect from them under prevailing power imbalances? This article therefore examines the potential of legal provenance research inspired by postcolonial theory to inform the restitution debate. This perspective not only questions factual misconceptions underlying the application of colonial law. It also reveals the contingency and ambiguity of colonial law resulting from impossibility of legitimizing oppression by law. As a result, colonial law turns out to be far less monolithic. The resulting ambiguity may give rise to different understandings of the law and enable legal interpretations that take into account the further development of the law up to the present day. The article then explains this method by reference to the Pergamon Altar, the bust of Nefertiti and artefacts from present-day Namibia. In each of these cases, it reveals serious doubts as to the legality of the acquisition. The case studies indicate that current restitution practice is based more on the cultural significance of the object for Germany than on legal criteria. Processes of cultural appropriation and othering seem decisive for current restitution practice.
El presente trabajo trata de abordar un estudio integral del concepto de diversidad cultural y analizar la influencia de este principio de Derecho internacional sobre los instrumentos jurídicos que regulan los mecanismos de restitución de... more
El presente trabajo trata de abordar un estudio integral del concepto de diversidad cultural y analizar la influencia de este principio de Derecho internacional sobre los instrumentos jurídicos que regulan los mecanismos de restitución de bienes culturales. Para ello, se estudia en detalle el proceso de gestación de la Convención de la Unesco sobre Diversidad Cultural de 2005. A su vez, se analizan los mecanismos de restitución de los vigentes instrumentos sobre la materia, con el objetivo de entender su alcance y funcionamiento y, así, comprender el impacto del concepto de diversidad sobre las nuevas líneas de trabajo en materia de restitución y tratamiento de los bienes culturales en el ámbito internacional. En particular, se trata de demostrar que el concepto de diversidad cultural puede ayudar a luchar contra el tráfico ilícito de bienes culturales mediante una aplicación expansiva de estos instrumentos, especialmente importantes en un contexto de comercialización y destrucción sistemática de patrimonio cultural en países afectados por enfrentamientos y conflictos de diversa naturaleza.
This paper tries to approach a complete study of the concept of cultural diversity and to analyse the possible influence of this principle of International Law onto the legal instruments that regulate the restitution mechanisms of cultural goods. For that, we study in detail the process of preparation of the Unesco Convention on Cultural Diversity of 2005. In turn, we analyse the mechanisms of restitution of the enacted instruments on this matter, with the aim of understanding their scope and functioning and, thus, comprehending the impact of the concept of diversity on the new lines of work in the restitution and the treatment of cultural goods in the international realm. Particularly, we try to demonstrate that the concept of cultural diversity can help to fight against the illicit traffic of cultural goods through an extensive application of these instruments, especially important in a context of systematic commercialization and destruction of the cultural heritage in countries affected by several conflicts of different nature.
1. ENG [2.ITA] The article reports the report held at the International Art & Law conference. Art in Peril, organized by Sarah Rabinowe and Daniel Kinsey of the University of Cambridge, held at Pembroke College, Cambridge, June 22-23,... more
1. ENG [2.ITA]
The article reports the report held at the International Art & Law conference. Art in Peril, organized by Sarah Rabinowe and Daniel Kinsey of the University of Cambridge, held at Pembroke College, Cambridge, June 22-23, 2015. This paper illustrates the events of the constitution, the requisition in Italy by the authorities at Time of the Fascist regime, the return to the heirs of the Kaumheimer - Kay family between 2002 and 2003 on the initiative of the president of the Autonomous Province of Trento of a precious collection of ceramics (Meissen and Nymphenburg) collected in Germany in the thirties. This is the first case in Italy to restitute a collection of works of art to legitimate heirs following the work of the so-called Anselmi Commission.
L'articolo riporta la relazione tenuta al convegno internazionale Art & Law. Art in Peril, organizzato da Sarah Rabinowe e Daniel Kinsey dell' University of Cambridge e tenutosi presso il Pembroke College di Cambruidge, il 22-23 giugno 2015. L'articolo illustra le vicende della costituzione, della requisizione in Italia da parte delle autorità all'epoca del regime fascista, la restituzione agli eredi della famiglia Kaumheimer - Kay fra 2002 e 2003 per iniziativa del presidente della Provincia autonoma di Trento di un preziosa collezione di ceramiche delle manifatture di Meissen e Nymphenburg raccolta in Germania negli anni Trenta. Si tratta del primo caso in Italia di restituzione di una collezione di opere d'arte ai legittimi eredi a seguito dei lavori della cosiddetta Commissione Anselmi.
In November, 2018, Felwine Sarr and Bénédicte Savoy released a report prepared for President Emmanuel Macron of France entitled “The Restitution of African Cultural Heritage. Toward a New Relational Ethics.” This report has set in motion... more
In November, 2018, Felwine Sarr and Bénédicte Savoy released a report prepared for President Emmanuel Macron of France entitled “The Restitution of African Cultural Heritage. Toward a New Relational Ethics.” This report has set in motion a debate that could have a profound impact on the status of African art held in collections around the world.
During a full-day international symposium at Columbia University on Oct. 18, 2019, the authors of the report will present their recommendations and reflect on the response that they have received over the past year. A panel of curators, scholars, and cultural entrepreneurs will respond to the issues, which have broad ramifications that resonate well beyond Africa and Europe. The symposium is free and open to the public.
In May 1962 French museum administrators removed over 300 works of art from the Musée des Beaux-Arts in Algiers and transported them, under military escort, to the Louvre in Paris. The artwork, however, no longer belonged to France. Under... more
In May 1962 French museum administrators removed over 300 works of art from the Musée des Beaux-Arts in Algiers and transported them, under military escort, to the Louvre in Paris. The artwork, however, no longer belonged to France. Under the terms of the Evian Accords it had become the official property of the Algerian state-to-be and the incoming nationalist government wanted it back. This article will examine not only the French decision to act in contravention of the Evian Accords and the ensuing negotiations that took place between France and Algeria, but also the cultural complexities of post-colonial restitution. What does it mean for artwork produced by some of France’s most iconic artists – Monet, Delacroix, Courbet – to become the cultural property of a former colony? Moreover, what is at stake when a former colony demands the repatriation of artwork emblematic of the former colonizer, deeming it a valuable part of the nation’s cultural heritage? The negotiations undertaken to repatriate French art to Algeria expose the kinds of awkward cultural refashioning precipitated by the process of decolonization and epitomizes the lingering connections of colonial disentanglement that do not fit neatly into the common narrative of the ‘end of empire'.
Little has been written about the art collection of Eugene Garbáty, a Jewish industrialist from Berlin who fled Germany and settled in the United States in the late 1930s. Yet, many American museum collections include works of art that... more
Little has been written about the art collection of Eugene Garbáty, a Jewish industrialist from Berlin who fled Germany and settled in the United States in the late 1930s. Yet, many American museum collections include works of art that belonged to Garbáty, and the Museum of Fine Arts, Boston (MFA) is no exception; between the 1940s and the 1960s, the MFA acquired thirty-four works of European painting, sculpture, and decorative art from him. Based on a study of the provenance of these objects, this article offers preliminary observations on the formation of Garbáty’s collection, its fate during World War II, and its dispersal within the United States.
La seconda parte dell'approfondimento sul caso del #falsario #Beltracchi, con la #traduzione dell'articolo di S. Hufnagel e D. Chappell 𝐓𝐡𝐞 𝐁𝐞𝐥𝐭𝐫𝐚𝐜𝐜𝐡𝐢 𝐀𝐟𝐟𝐚𝐢𝐫: 𝐀 𝐂𝐨𝐦𝐦𝐞𝐧𝐭 𝐨𝐧 𝐭𝐡𝐞 𝐌𝐨𝐬𝐭 𝐒𝐩𝐞𝐜𝐭𝐚𝐜𝐮𝐥𝐚𝐫 𝐆𝐞𝐫𝐦𝐚𝐧 𝐀𝐫𝐭 𝐅𝐨𝐫𝐠𝐞𝐫𝐲 𝐂𝐚𝐬𝐞 𝐢𝐧 𝐑𝐞𝐜𝐞𝐧𝐭 𝐓𝐢𝐦𝐞𝐬, su... more
La seconda parte dell'approfondimento sul caso del #falsario #Beltracchi, con la #traduzione dell'articolo di S. Hufnagel e D. Chappell 𝐓𝐡𝐞 𝐁𝐞𝐥𝐭𝐫𝐚𝐜𝐜𝐡𝐢 𝐀𝐟𝐟𝐚𝐢𝐫: 𝐀 𝐂𝐨𝐦𝐦𝐞𝐧𝐭 𝐨𝐧 𝐭𝐡𝐞 𝐌𝐨𝐬𝐭 𝐒𝐩𝐞𝐜𝐭𝐚𝐜𝐮𝐥𝐚𝐫 𝐆𝐞𝐫𝐦𝐚𝐧 𝐀𝐫𝐭 𝐅𝐨𝐫𝐠𝐞𝐫𝐲 𝐂𝐚𝐬𝐞 𝐢𝐧 𝐑𝐞𝐜𝐞𝐧𝐭 𝐓𝐢𝐦𝐞𝐬, su uno dei più eclatanti processi di contraffazione di opere d’arte della storia.
Drawing on the works of artists Maria Eichhorn (Berlin) and Dilek Winchester (Istanbul), this article focuses on artistic responses to the twin processes of violence and dispossession in Germany and the late Ottoman Empire and republican... more
Drawing on the works of artists Maria Eichhorn (Berlin) and Dilek Winchester (Istanbul), this article focuses on artistic responses to the twin processes of violence and dispossession in Germany and the late Ottoman Empire and republican Turkey, respectively. Their artistic practices respond to what is irrecoverable in loss, in contrast to dominant discussions on material restitution as a process that always projects a reversibility of past injuries and that remains limited to the logic of possession. The article argues that these practices pose an aesthetic challenge to the conceptual frameworks within which both dispossession and restitution are usually understood. They produce forms of aesthetic redistribution that open paths to alternate ways of envisioning historical justice in transformative rather than recuperative terms.
Conference: 'Remnants of Genocide: Reclaiming Art and other Heirlooms Lost in Atrocities'
Panel: "Issues in Art Restitution"
Location: Loyola Law School, Center for the Study of Law and Genocide
Date: March 2011
Documents of the American Commission for the Protection and Salvage of Artistic and Historic Monuments in War Areas (the Roberts Commission), 1943-1946, which is preserved in the National Archives and Records Administration in Washington... more
Documents of the American Commission for the Protection and Salvage of Artistic and Historic Monuments in War Areas (the Roberts Commission), 1943-1946, which is preserved in the National Archives and Records Administration in Washington is an important research source for historians, conservators, museum officials and art historians across Europe. In the preserved documents there are data for the region of former Yugoslavia alongside data for many other countries in which the MFAA officers were active. This report deals in particular with research of activities related to Zadar offering also explanation of formation and activity of the Roberts Commission and general analysis of the material from the region of former Yugoslavia. Particular attention was paid to the document called Zara: Report on War damage on Monument and movable works of Art known to be stored in Italy. This document on some thirty pages presents explanations of circumstances in which the report was created, known facts about movable works of art and damage on the monuments in Zadar, reports about the review of 14 boxes located in Venice and list of relevant bibliography. Six appendices were added to the report explaining in detail destiny and conditions of monuments and movable works of art in Zadar and methods of their protection from war activities. Appendices consist of the following: report of Luigi Crema, high commissioner for antiquities, monuments and galleries in Dalmatia; reports of Fausto Franco, Office for Monuments and Galleries in Trieste; reports of the captain Basil Marriott, MFAA officer for the region of Venice about examination of 14 boxes with the material from Zadar deposited in the Palazzo Ducale in Venice (captain Basil Marriott was in charge of the entire action); summaries of original inventory lists made in 1940 for six boxes deposited in the cathedral crypt in Zadar delivered by professor Galli from the Office for Antiquities in Ancona; list of contents in 14 boxes deposited in Palazzo Ducale in Venice made by dr. Bruna Forlati in cooperation with captain B. Mariott, MFAA officer for the Venice region and list of assumed damages on the monuments in Zadar made on the basis of aerial photos of Zadar. Since this list has not been known before nor the documents which explains circumstances in which works of art were taken from Zadar, this discovery is exceptionally important for all researchers dealing with this theme.
Quello del #falsario #Beltracchi, conclusosi con la #condanna del protagonista e del suo entourage, è uno dei più clamorosi casi di #falsificazione d'#Arte degli ultimi anni. Per #JCHC, la traduzione dei passaggi più significativi del... more
Quello del #falsario #Beltracchi, conclusosi con la #condanna del protagonista e del suo entourage, è uno dei più clamorosi casi di #falsificazione d'#Arte degli ultimi anni.
Per #JCHC, la traduzione dei passaggi più significativi del volume 𝑻𝒉𝒆 𝑩𝒆𝒍𝒕𝒓𝒂𝒄𝒄𝒉𝒊 𝑨𝒇𝒇𝒂𝒊𝒓 di #Chappell e #Hufnagel.
Cultural Heritage as Symbolic Capital: Transnational Archival Research / Patrimonio culturale come capitale simbolico: una ricerca d’archivio transnazionale -- TransCultAA Study Day, Udine, 11th December 2018
The author aims at drawing on one man’s experience in order to gain a better understanding of the dynamics surrounding art-related claims brought forward by Italy after 1945. Indeed, among all those who were actively involved in Italy’s... more
The author aims at drawing on one man’s experience in order to gain a better understanding of the dynamics surrounding art-related claims brought forward by Italy after 1945. Indeed, among all those who were actively involved in Italy’s post-war negotiations over displaced cultural property, Florentine-born officer Rodolfo Siviero (1911-1983) happens to bear witness to more facts and causes than anyone else does. Light is shed on Siviero’s multiple affiliations throughout the ‘30s and ‘40s: from the Fascist Party to the Italian anti-regime guerrillas and the Allied Supreme Commander. These laid the groundwork for the officer’s full involvement in US-Italian negotiations over cultural assets unlawfully and forcedly transferred between 1937 and 1945. By combining Siviero’s memoires with official records, we reveal a crucial difference during post-war negotiations between the treatment of cultural assets proactively displaced by fascist authorities before 1943 and those seized under military occupation. The former group includes artworks such as the Vipiteno panels, the Corsini collection and Ventura’s renaissance masterpieces, while the latter, including the Waeskerlin and the Van Marle collections, as well as the Montecassino hoard, were among those hauled away by the Nazis. After the war, Italy’s peculiar position as both victor and vanquished led to a succession of concessions and recriminations among Italian delegates (led by Siviero), Allied, MFAA and German personnel. The expression “exceptional returns” was specifically coined to indicate those works that Italy was possibly not entitled to, but eventually granted by US. The fact that this occurred during Italy’s 1948 general election shows how cold-war allowed what fascist collusion had long been compromising. Siviero’s career is thus emblematic of a political transition that, by neglecting its fascist legacy, deeply affected the fate of displaced cultural property and hindered the possibility for Italy to properly commit itself to provenance research.
Ardelia Ripley Hall (1899–1979) served from 1946 until 1962 as the Fine Arts and Monuments Adviser to the U.S. Department of State. In this role she oversaw the recovery and restitution of movable cultural property that had been displaced... more
Ardelia Ripley Hall (1899–1979) served from 1946 until 1962 as the Fine Arts and Monuments Adviser to the U.S. Department of State. In this role she oversaw the recovery and restitution of movable cultural property that had been displaced during the Second World War. In spite of her vast accomplishments, almost nothing has been written on Ardelia Hall, and little is known about her life. She began her career at the Museum of Fine Arts, Boston, but personal circumstances led to her resignation in 1941. During the war, she was employed by the Office of Strategic Services. The expertise she established as an art historian working with the Roberts Commission at this time led to her appointment at the State Department in 1946. This essay traces for the first time Hall’s remarkable journey from curatorial researcher to adviser on international art restitution.
