The International
JOURNAL
of
the
INCLUSIVE
MUSEUM
Volume 2, Number 2
Moral Claims Against Museums: The Emerging
Concept of Moral Title to Objects of Cultural
Heritage
Charlotte Woodhead
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Moral Claims Against Museums: The Emerging Concept
of Moral Title to Objects of Cultural Heritage
Charlotte Woodhead, University of Derby, Derbyshire, UK
Abstract: Museums owe a duty to society to hold objects within their collections in trust for the benefit
of society and have responsibilities towards a variety of stakeholders. These sentiments are expressed
in the Codes of Ethics of the International Council of Museums (ICOM) and the UK’s Museums Association. A particular concern is the provenance (or ownership history) of the collected objects. In some
instances museums around the world now contain objects of cultural heritage which were taken from
their owners during the Second World War in morally reprehensible circumstances (and which could
be said to have a “tainted” provenance). In recent years museums have undertaken provenance research
and published lists of objects with uncertain provenance between the years 1933-1945. Museums may
enjoy an undisputed legal entitlement to these objects, yet this can be at odds with the moral claims
of survivors of the Second World War who were dispossessed of their objects, or indeed the moral
claims of their heirs. This paper will consider how far the legal entitlement to objects of cultural heritage enjoyed by museums should be limited by the moral claims of these third party stakeholders.
Consideration will be given to the difficulties in defining moral entitlement as a universally recognised
concept. It will be argued that the moral strength of claims to cultural heritage is gaining an increasing
recognition throughout museum practice. Some museums which have the power to de-accession objects
from their collections choose to exercise that power based on the moral claims of third parties, rather
than rely on their strict legal entitlements to objects. In particular the paper will analyse panels such
as the United Kingdom Spoliation Advisory Panel which recommends solutions for resolving such
disputes without resort to the courts and consider whether the body of decisions by these panels has
resulted in the development of a concept of moral entitlement to objects of cultural heritage.
Keywords: Cultural Heritage, Legal Entitlement, Moral Entitlement, Competing Claims, Second World
War, Interests of Stakeholders
Introduction
T
HIS PAPER FOCUSES on the duties that museums owe to society and their individual stakeholders in respect of objects of cultural heritage1 where their original
owners lost possession of them during the years 1933-1945 as a result of the Nazis
or their collaborators. The situation in UK museums will form the focus of discussion.
During the period 1933-1945 whilst Europe was ravaged by war and whilst countless
physical atrocities took place, assets were systematically stripped by the Nazi regime, in
particular from members of the Jewish communities. This asset stripping and significant
loss of property included works of art and other valuable cultural objects. The extreme cir1
Thanks are due to Dawn Watkins for her helpful comments on the draft of this paper. I would also like to express
thanks to my referees who provided some useful comments for further development.
Throughout this paper the phrase “objects of cultural heritage” is used to reflect the wide range of artworks and
other valuable objects which were misappropriated during the Second World War.
The International Journal of the Inclusive Museum
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© Common Ground, Charlotte Woodhead, All Rights Reserved, Permissions:
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THE INTERNATIONAL JOURNAL OF THE INCLUSIVE MUSEUM
cumstances of persecution also necessitated the sale of such objects by Jewish owners in
order to purchase either freedom or the basics for survival. Whilst post-war restitution laws
made some inroads into reuniting the objects with their owners, many objects of cultural
heritage remained on the open market and were acquired by private individuals or public
institutions including some of the major museums across the world.2 Since the late 1990s
increased attention has been paid to the need for enhanced provenance checks to determine
whether museum collections have objects with provenance tainted by their Second World
War history. The museum profession has shown a clear commitment to carrying out these
provenance checks and to document objects with incomplete provenance for the years 19331945.3 It has been argued that there should be a legal requirement to publish full collection
inventories to effect provenance research.4 Calls have also been made to return such objects
to their pre-war owners or to the heirs of those owners. There appears to be an appreciation
by Parliament that this is desirable.5 This increased concern is in part due to the Washington
Conference on Holocaust-Era Assets, 19986 and the Vilnius Forum on Holocaust Era Looted
Cultural Assets, 20007, both of which resulted in published principles. It is also thanks to
international instruments such as the Council of Europe Resolution in 1999.8 Within the UK
the Culture, Media and Sport Select Committee published its report, ‘Cultural Property:
Return and Illicit Trade’ in July 20009 and the then Minister for the Arts established the
Spoliation Advisory Panel to resolve disputes between claimants and certain museums.10
Most recently in the Terezin Declaration the representatives of 46 states renewed their
commitment to the return of art and cultural property to the victims of the Holocaust.11
This paper considers how far museums should rely on their strict legal entitlement to objects
of cultural heritage whose provenance has been tainted by their Second World War history.
Potential claimants may not have grounds on which to mount legal challenges due to limitation
periods barring their claims and museums may enjoy indisputable legal entitlement to those
objects. An increasing number of requests has been made to museums for the return of these
2
N Palmer, Museums and the Holocaust (IAL publishing, Leicester 2000) 6-12.
In the UK many museums have produced spoliation reports which list items which have incomplete provenance
for the years 1933-1945. This is available online at: <http://www.culturalpropertyadvice.gov.uk/spoliation_reports
<accessed 14 August 2009>. Other countries have adopted similar approaches, for example in the United States of
America: H Wechsler and E Ledbetter, ‘The Nazi-Era Provenance Internet Portal: collaboration creates a new tool
for museums and researchers’ (2004) 56 Museum International 53.
4
S Lewis, ‘There is still too much heel-dragging over provenance research’ [2009] 4 Museums Journal 17.
5
This has been reflected in the various debates relating to the Holocaust (Return of Cultural Objects) Bill:
<http://services.parliament.uk/bills/2008-09/holocauststolenartrestitution.html> accessed 14 August 2009.
6
At this conference over 40 countries signed the Principles with respect to Nazi-Confiscated Art, Washington
Conference on Holocaust-Era Assets, 1998.
7
The state parties agreed to the Vilnius Forum Declaration, 2000 at this Forum which was arranged under the
auspices of the Council of Europe.
8
Council of Europe Resolution 1205 (1999) On Looted Jewish Cultural Property (November 1999).
9
Seventh Report of the Select Committee on Culture, Media and Sport, ‘Cultural Property: Return and Illicit Trade’
HC (1999-2000) 371.
10
The work of the Panel is discussed in more detail below.
11
Terezin Declaration, 30 June 2009 available at <http://www.holocausteraassets.eu/files/20000021535d8ef1a36/TEREZIN_DECLARATION_FINAL.pdf> accessed 14 August 2009. Furthermore, the European
Commission and the Czech EU-Presidency published a Joint Declaration in which they declared their “readiness
to make every effort and create a more effective European approach by supporting goals dealing primarily with
education and social welfare such as...Provenance research of Looted Art.” available at <http://www.holocausteraassets.eu/files/200000216-0a518a989b/Joint_Declaration_EU_CZ_final.pdf> accessed 14 August 2009.
3
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CHARLOTTE WOODHEAD
objects to either their pre-war owners or to the heirs of these victims of dispossession. Since
these claimants will usually not have any modern-day legal entitlement they will often need
to resort to claims based on moral grounds. The Spoliation Advisory Panel (SAP) provides
a means by which disputes between victims or their heirs and museums in receipt of public
funding can be resolved by assessing moral as well as legal considerations. Nevertheless,
only the governing bodies of some museums may be able to accede to morality-based requests
since others, in particular those of national museums, are faced with legal restrictions on
their powers of disposal.12
Throughout this paper the term ‘spoliation’ is used to refer to the various circumstances
in which people lost possession of their objects of cultural heritage as a result of the actions
of the Nazis. The vagueness of the term “lost possession” covers the multitude of different
means by which the direct or indirect victims of the Nazi regime were divested of their
property. Overt acts of seizure by the Gestapo represented removal by force, but in other
cases transfers of title were effected in such a manner as to give the impression of legitimacy.
However, the documentation concealed the circumstances of forced sales at undervalues in
order to fulfil exorbitant discriminatory taxation demands, or sales in order to purchase the
necessities of life as a result of persecution.13
Spoliation within the Wider Context of Cultural Heritage Disputes
Spoliation of objects of cultural heritage misappropriated during the Second World War is
not the only context in which museums find themselves grappling with the concepts of
ownership of cultural heritage. Indeed, the ethical issues regarding cultural heritage have
been described as challenging.14 Whilst cultural heritage can be considered the heritage of
mankind and something which should be universally protected, specific disputes can also
arise in the context of particular objects of cultural heritage. Some museum collections house
objects of sacred significance to certain communities and those communities may claim a
better entitlement to those objects than the museum. Various museums have therefore received
repatriation requests from source communities for the return of sacred material as well as
human remains. In the UK all museum governing bodies are now permitted to accede to requests for the return of human remains for whatever reason they think fit since the Human
Tissue Act 2004 extended such a power to certain named, national museums which were
previously prevented from making such a transfer.15
Requests for the return of objects of cultural heritage are not only made by individuals or
communities, but can also be made by nations. For example, Greece’s claim to the Parthenon
Friezes held in the British Museum as well as Nigeria’s claims regarding the Benin Bronzes.
12
The phrase “national museums” tends to be used to refer to those museums whose legal status derives from
statute and which receive direct government funding. In contrast the term “non-national museums” is frequently
used to refer to museums in receipt of public funding, but whose funding is not directly from central government:
Loans Between National and Non-national Museums: New Standards and Practical Guidelines (National Museum
Directors’ Conference, London 2003).
13
For example, a case resolved by the Spoliation Advisory Panel concerned a sale at an undervalue of a painting
in Belgium for “an apple and an egg”: Report of the Spoliation Advisory Panel in respect of a painting now in the
possession of the Tate Gallery (18 January 2001) (2001 HC 111) [11].
14
U Gößwald, ‘ICOM statement on reclaiming cultural property’ (2009) 61 Museum International 87, 89.
15
Human Tissue Act 2004, s 47. This provision only covers human remains of those people who died less than
1,000 years since the coming into force of that section of the Act. It therefore does not apply to ancient Egyptian
mummies and the like.
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THE INTERNATIONAL JOURNAL OF THE INCLUSIVE MUSEUM
Duties of Museums
In a similar vein to the second principle of the ICOM Code Ethics16, the UK Museums Association (MA) defines museums as “institutions that collect, safeguard and make accessible
artefacts and specimens, which they hold in trust for society.”17 This obligation of trust for
future generations is often evident in legal terms in the governing statutes of national museums
within the UK. For example, the governing body of the British Museum is under an obligation
so far as it is appears practicable to do so, to make the objects within the collection available
to members of the public.18 Furthermore, the principle of maintaining collections intact is
supported by a prohibition on disposal from the museum’s collections except in extremely
rare circumstances such as when an object is unfit to be retained.19 During a recent debate
in Parliament various Members of Parliament emphasised the need for maintaining the independence of the national museum governing bodies from politics,20 but also acknowledged
that those governing bodies should not have an unfettered right to transfer objects from their
collections.21 The British Museum is frequently seen as a global museum and in-line with
this approach the beneficiaries of the trust under which the museum’s governing body holds
its collections are seen as being the “citizens of the world”, rather than just the citizens of
the UK.22 This sentiment has been expressed in the context of many of the large international
museum collections across the world in the Declaration on the Importance and Value of
Universal Museums in 2003.23
UK museum governing bodies derive their legal obligations from either their specific
governing statutes or from the statutes and case law which govern their particular organisational structure. In addition to these legal obligations, professional bodies such as ICOM
and the MA, governmental departments such as the Department for Culture, Media and Sport
(DCMS) and Non-Department Governmental Public Bodies such as the Museums Libraries
and Archives Council (MLA) require the museum governing bodies to adhere to moral obligations. These additional obligations can have general application to museum practice,
such as the various codes of ethics. Alternatively they can be specific such as the National
Museum Directors Conference (NMDC) Statement of Principles24 which deal with spoliation
and provenance checks relating to national museums. Comparable principles applicable to
non-national museums exist which were published by the Museums and Galleries Commission
(MGC) (the forerunner of the MLA).25
16
ICOM Code of Ethics for Museums (International Council of Museums, Paris 2006).
Code of Ethics for Museums (UK Museums Association, London 2008) 9.
18
British Museum Act 1963, s 3(3).
19
ibid., ss 3(4) and 5.
20
Barbara Follet MP, Hansard HC vol 492 col 1172 (15 May 2009).
21
Barbara Follet MP, Hansard HC vol 494 col 1048 (26 June 2009).
22
British Museum Reports and Accounts for the year ended 31 March 2007, Chairman’s foreword, 12 July 2007
(2007 HC 777).
23
This Declaration was signed by the directors of 19 international museums ranging from the British Museum to
the Art Institute of Chicago and including the State Hermitage Museum, St Petersburg. It is reproduced as Appendix
1 in G Lewis, ‘The “Universal Museum”: A case of Special Pleading?” in B Hoffman (ed), Art and Cultural Heritage: Law, Policy and Practice (Cambridge University Press, Cambridge 2006).
24
Statement of Principles and Proposed Actions on Spoliation of Works of Art during the Holocaust and World
War II period (National Museum Directors’ Conference, London 1998).
25
Statement of Principles on Spoliation of Works of Art during the Nazi, Holocaust and World War II period
(Museums and Galleries Commission, London 1999, reprinted in Palmer (n 2) Appendix XI).
17
4
CHARLOTTE WOODHEAD
The obligations of museums’ governing bodies to keep their collections intact is immediately at odds with claims made by third parties for the return of objects of cultural heritage
where the claimants have no legal base to claims but rely solely on moral claims.26 However,
transfer of objects which were misappropriated during the Nazi era tend to be considered as
a worthy exception to this general rule.27 Whilst the legal structure of some museums means
that their governing bodies are free to accede to requests for return of objects on purely
moral grounds, other museums, such as the British Museum, do not have the power to do
so, as is clearly demonstrated by the following example.
In 2002 the heirs of a Dr Feldmann made a request to the governing body of the British
Museum for the return of certain drawings. The heirs alleged that these drawings were
amongst other property that had been seized by the Gestapo from Dr Feldmann’s villa in
Brno, in the then Czechoslovakia during 1939. The museum’s governing body decided that,
providing it was legally permitted to do so, it would return the drawings to the heirs. The
governing body sought the advice of the Attorney-General, who in turn applied to the court
to determine whether the British Museum’s governing body was permitted to dispose of
these drawings to which it had a legal entitlement.
In the resulting case, Her Majesty’s Attorney-General v The Trustees of the British
Museum 28 the Vice-Chancellor held that the principle in the case of Re Snowden 29 (to make
a payment out of charity property in order to satisfy a perceived moral obligation) was not
exercisable where there was a statutory provision which prohibited disposal in those circumstances.30 In his view, only Parliament could instigate such an exception to the existing
provision of section 3(4) of the British Museum Act 1963.31
Many of the other governing bodies of the UK national museums are similarly prevented
by their own governing statutes from acceding to requests for the return of objects of cultural
heritage even where those objects have tainted provenance.32 However, the governing bodies
of non-national museums tend not to have such legal restrictions on their powers of disposal
and so can give effect to moral compunctions to return objects of cultural heritage to
claimants. If the non-national museum is a charity then its governing body will need to seek
the permission of the Charities Commission under section 27 of the Charities Act 1993 to
waive the governing body’s entitlement to the property since it considers itself under a
moral obligation to forego that entitlement. If it is an exempt charity, then it can apply to
the Attorney-General or to the court under the principle in Re Snowden.33
26
For many claimants, the Limitation Act 1939 will extinguish their title to objects of cultural heritage by virtue
of section 3(2) since time for the purposes of the limitation period would run from six years from the time the cause
of action in conversion (wrongful taking of property) accrued. This was the statute of limitation in force prior to
the Limitation Act 1980 which now deals with relevant limitation periods for actions based in the tort of conversion.
27
Earl Attlee, Hansard HL vol 712 col 911 (10 July 2009). Arguments have been advanced that disputes relating
to such artworks are worthy of an extraordinary remedy such as establishing an international tribunal to determine
claims: JA Kreder, ‘Reconciling Individual and Group Justice with the need for repose in Nazi-looted Art Disputes:
Creation of an International Tribunal’ (2008) 13 Art Antiquity and Law 243, 247.
28
[2005] Ch 397 (Ch) 405.
29
[1970] Ch 700 (Ch).
30
[2005] Ch 397 (Ch) 412.
31
ibid.
32
In this regard, see by way of example the Museums and Galleries Act 1992 ss 4 and 6 and the National Heritage
Act 1983 ss 6, 14 20 and 27.
33
Re Snowden n 29.
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THE INTERNATIONAL JOURNAL OF THE INCLUSIVE MUSEUM
The Impact on the Inclusive Museum
Objects with tainted provenance might be said to adversely affect the inclusive nature of
museums in the sense that, despite the existence of a pure legal entitlement to the objects,
society is benefiting from a wrong. It might be said that the objects of cultural heritage which
have been tainted in this way should no longer be held for the benefit of society, but that
society would benefit from the return of these objects to individuals who were either originally
entitled to them, or who may well have inherited them. In a sense the public has been unjustly
enriched for many years at the expense of the victims and their heirs.34 The Council of
Europe has clearly articulated a commitment to restitution of cultural property which was
looted from Jews and it is evident that where the body currently holding the property is in
receipt of public funding then this sentiment is expressed in emphatic terms.35 The tone of
this principle is akin to the clearly articulated principle of the Unidroit Convention relating
to restitution of stolen cultural property.36
Council of Europe Resolution 1205 states:
“Bodies in receipt of government funds which find themselves holding looted Jewish
cultural property should return it. Where such works have been destroyed, damaged or
are untraceable, or in other cases where restitution may not be possible, such bodies
should be assisted to pay compensation at the market value.”37
The undertone of this provision could be said to provide support for the argument that those
museums in receipt of public funds have an obligation or duty in respect of the return of
such objects which exceeds that of private owner in a similar position. The default response
to identifying objects of cultural heritage whose provenance is tainted appears to be the return
of the object to the claimant. The Council of Europe appears to treat monetary compensation
as something of a last resort. Firstly, compensation is deemed appropriate where the physical
circumstances impede return, for example where there has been damage, destruction or loss.
The second category is “in other cases where restitution may not be possible” and in this
regard it could cover situations where there exists a statutory provision in the museum governing statute which prevents disposal from the collections. Having said that, article 13 of
the Resolution states that it may be necessary to facilitate restitution through the medium of
legislative change and specifically mentions “removing restrictions on alienability”.38 No
particular reference is made in the Resolution regarding any distinction which should be
made between the legal strength of a claim and the moral strength of a claim where the
former is absent.39
As the UK Museums Association makes clear, museums are responsible to a number of
different stakeholders and museums need to balance these responsibilities.40 Disposal of
objects from museum collections is perceived as the exception rather than the rule, given
34
For a more detailed consideration of this point see n 57 below.
Council of Europe Resolution 1205 (1999) On Looted Jewish Cultural Property (November 1999).
36
Unidroit Convention on Stolen or Illegally exported cultural objects, Rome, 24 June 1995, art 3.
37
Council of Europe Resolution 1205 (1999) On Looted Jewish Cultural Property (November 1999) art 12.
38
Ibid., art 13(b).
39
Again, this should be considered in the light of article 13(a) of the Resolution which also calls for the facilitation
of legislation which might effect the extension or removal of limitation periods.
40
Code of Ethics for Museums (UK Museums Association, London 2008) principle 7.0.
35
6
CHARLOTTE WOODHEAD
the obligation to hold the collections for present and future generations. Therefore, it is incumbent on the museum, where disposal of an object is appropriate (and by implication
where it is legally permissible) to demonstrate “clearly how the long-term local and general
public interest is served in circumstances in which disposal may be appropriate and ensure
that public trust in museums is upheld.”41 It would seem that demonstration of the circumstances in which the victim lost possession of objects of cultural heritage, whether by virtue
of seizure or other forced sale would most likely satisfy the long-term public interest. In effect
this would be because the museum and consequently the public, would no longer be benefiting
from an object with tainted provenance.
Questions arise as to whether the role of museums, as guardians of our past and with responsibility to a variety of stakeholders, is best served by redressing the injustices of the
past through the medium of removal from their collections. Unfortunately, as discussed
above, two obstacles stand in the way of consistent, principled resolution of disputes. The
first is the existence of limitation periods which bar victims or their heirs from establishing
a strict legal entitlement to claim objects of cultural heritage so long after the act of dispossession. The second obstacle affects only those museum governing bodies which lack the
power to dispose of objects from their collections.
The effect of the first of these legal impediments is largely mitigated in the UK by the
work of the SAP. The second currently remains set in legislative stone. The DCMS Consultation paper which addressed possible reforms received favourable responses, but the DCMS
highlighted that given the comparatively small number of claims which are likely to be made
such legislation was not at the top of the legislative timetable.42 However, there is currently
a Private Members’ Bill before Parliament which makes provision for the governing bodies
of named museums to have the power to transfer from their collections cultural objects where
claims have been made in respect of objects which relate to events which occurred during
the Nazi era.43 This power would only be exercisable where the designated Advisory Panel
has recommended the transfer and where the Secretary of State has approved the Panel’s
recommendation.
Moral Considerations in the Decisions of the Spoliation Advisory Panel
Of the six successful claims brought before the SAP all have given rise to moral considerations, since the legal entitlement of the museums in possession of the objects was clearly
established due to statutory limitation periods that time-barred the claimants’ legal claims
and extinguished their title.44
41
ibid., principle 6.9.
Restitution of Objects Spoliated in the Nazi-Era: A Consultation Document, Department for Culture, Media and
Sport, July 2006 [1.9] and Summary of Responses to the Consultation Paper: Restitution of Objects spoliated in
the Nazi-Era, Department for Culture, Media and Sport, June 2007.
43
Holocaust (Return of Cultural Objects) Bill.
44
The Panel has described the claimants’ titles as “impregnable under limitation law” in at least two of its reports.
By way of example see Report of the Spoliation Advisory Panel in respect of a painting now in the possession of
Glasgow City Council (24 November 2004) (2004 HC 10) [4] and Report of the Spoliation Advisory Panel in respect
of a painting held by the Ashmolean Museum in Oxford (1 March 2006) (2006 HC 890) [47].
42
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The concept of moral entitlement is a difficult one to define. The moral considerations
which the Panel addresses deal with two aspects of an object’s history.45 The first type of
relevant moral consideration for the SAP is the strength of the claimant’s claim and focuses
on the circumstances in which the claimant (or his forefather) lost possession of the object
of cultural heritage. This will be termed the immorality of deprivation and it has been the
basis on which the vast majority of the successful claims to the SAP have been framed. The
Panel has considered several moral claims resulting from overt acts of seizure. The first two
claims which were brought in respect of the British Museum and the Courtauld Institute involved the seizure of artworks by the Gestapo from Dr Feldman’s house in Brno which was
discussed above in the context of the British Museum. There was clear eye witness evidence
of the seizure having taken place and the Panel described the situation as follows: “Dr
Feldman was deprived of all four drawings by a gross act of spoliation by the Gestapo, furnishing an unassailable moral strength to this claim by his heirs.” 46 In a claim involving the
seizure of Heinrich Rothberger’s art collection by the Gestapo, the SAP described the moral
claims of his heirs as being strong.47
Other cases have involved acts which were other than direct physical misappropriation
by the Gestapo. In the second claim heard by the SAP the heirs of shareholders in a gallery
were successful in their claim before the Panel. There the shareholders had been forced to
sell their gallery stock in order to pay an extortionate taxation demand which they were required to satisfy before being able to flee Germany.48 The Panel concluded that the clearance
sale in which they sold the stock was as a direct consequence of the extortionate tax demand
and consequently the heirs had a strong moral claim49 (immorality of deprivation). In the
case involving Griffier’s painting of ‘A View of Hampton Court Palace’ the claimants’
mother, as a result of Nazi persecution, had fled from Germany to Belgium where she sold
various paintings for “an apple and an egg.”50 The Panel felt in a position to find the necessary
moral strength due to the wording of the Inter-Allied Declaration whereby the government
signatories to the declaration reserved for themselves the right to declare invalid any transfers
of or dealings with property.51 The warning was stated to apply “whether such transfers or
dealings have taken the form of open looting or plunder, or of transactions apparently legal
in form, even when they purport to be voluntarily effected.”52
The three unsuccessful claims brought before the Spoliation Advisory Panel were rejected
on the basis of the claimants’ lack of moral strength to the claims. In the claim involving
three Rubens paintings held by the Courtauld Institute of Art in London the Panel considered
45
Paragraphs 5(b) and 6 Spoliation Advisory Panel Constitution and Terms of Reference, Hansard vol 348 col
255W (13 April 2000) and paragraphs 7(e) and (g) Hansard vol 348 col 256W (13 April 2000).
46
Report of the Spoliation Advisory Panel in respect of four drawings now in the possession of the British Museum
(27 April 2006) (2006 HC 1052) [34] and Report of the Spoliation Advisory Panel in respect of three drawings
now in the possession of the Courtauld Institute of Art (24 January 2007) (2007 HC 200) [21].
47
Report of the Spoliation Advisory Panel in respect of three pieces of porcelain now in the possession of the
British Museum London and the Fitzwilliam Museum, Cambridge (11 June 2008) (2008 HC 602) [12].
48
Report of the Spoliation Advisory Panel in respect of a painting now in the possession of Glasgow City Council
(24 November 2004) (2004 HC 10).
49
ibid.,[19].
50
This is a German saying indicating next to nothing, or a sale for a nominal sum.
51
Inter-Allied Declaration against acts of dispossession committed in territories under enemy occupation or control,
London, 5 January 1943.
52
ibid.
8
CHARLOTTE WOODHEAD
that the deprivation of the paintings was due to a bank calling in a loan and realising its security, rather than it resulting from any act of theft, forced sale or sale at an undervalue.
Therefore there was no moral strength to the claimant’s case.53 In the case involving the
Ashmolean Museum at Oxford, the heirs of Jakob Goldschmidt pursued their claim on the
basis that Mr. Goldschmidt sold paintings at an undervalue during the Nazi era. Mr. Goldschmidt owned a bank and in 1935 a law came into force which prohibited Jews from owning
or operating banks.54 However, the Panel held that the sale at auction was as a result of liquidating his assets and reducing his liability to a bank. It was therefore not a sale which
was forced by the Nazi regime and in any event the object of cultural heritage was sold at a
fair value.55 The Panel was unwilling to accept an argument that but for the Nazi regime
Mr. Goldschmidt could have rebuilt his fortune. In the most recent case heard by the SAP
it was concluded that the claimants’ moral claim was insufficiently strong since even though
the particular sale was predominantly as a result of Nazi persecution, the Panel found (a)
that the sale prices received for the various paintings by the Jewish seller were the reasonable
market prices and (b) that his wife had received some modest monetary compensation immediately after the war.56
The second type of moral consideration addressed by the SAP deals with the moral obligations of the institution which currently holds the object and addresses these at the time that
it acquired the object. This will be termed the immorality of acquisition and it analyses how
far the holding institution exercised its due diligence obligations in determining the
provenance of the object of cultural heritage. The standard against which the institution is
tested is the professional standard of provenance checking at the time of acquisition. The
SAP is thereby not imposing on the institution retrospectively the higher professional
standards of today. If the circumstances in which the object of cultural heritage was acquired
are morally reprehensible then they have, in effect, benefited from their wrong doing and
have been unjustly enriched.57 In effect, the inclusive nature of the museum has been adversely
affected by its original actions of acquisition as well as by the continued retention of the
tainted object of cultural heritage.
It would seem that only one of the claims brought before the SAP could really be rationalised as having been based purely on the immorality of acquisition. In the case of the Benevento Missal58 it is unclear whether the claimants were wholly successful on the immorality of deprivation point. Nevertheless, the Panel certainly found in their favour based on
the immorality of acquisition since the Panel determined that the British Museum (later the
British Library) ought to have made further investigations regarding the provenance of the
53
Report of the Spoliation Advisory Panel in respect of three Rubens paintings now in the possession of the
Courtauld Institute of Art, London (28 November 2007) (2007 HC 63) [35].
54
Report of the Spoliation Advisory Panel in respect of a painting held by the Ashmolean Museum in Oxford (1
March 2006) (2006 HC 890) [40].
55
ibid. [48].
56
Report of the Spoliation Advisory Panel in respect of Eight paintings now in the possession of the Samuel
Courtauld Trust (24 June 2009) (2009 HC 757), [43].
57
Palmer has commented that the tone of the SAP in Report of the Spoliation Advisory Panel in respect of a
painting now in the possession of the Tate Gallery (18 January 2001) (2005 HC 111) reflected the common law
concept of unjust enrichment: N Palmer, ‘Spoliation and Holocaust-related Cultural Objects: Legal and Ethical
Models for the Resolution of Claims’ (2007)12 Art Antiquity and Law 1, 10.
58
Report of the Spoliation Advisory Panel in respect of a 12th century manuscript now in the possession of the
British Library (23 March 2005) (2005 HC 406).
9
THE INTERNATIONAL JOURNAL OF THE INCLUSIVE MUSEUM
missal since there was a manifest possibility that the missal was looted.59 The reason for the
uncertainty regarding the claimants’ success on the immorality of deprivation point was that
the Panel did not expressly conclude on the success of this point. However, at the end of the
discussion regarding the position of the British Library (the immorality of acquisition argument) the Panel expressed the sentiments discussed above in terms of the need for further
provenance investigation, but only concluded after a discussion of an argument based on
public interest that “the claimants have on balance made good their moral claim.”60 Usually
the Panel makes a distinction between the strength of the claimant’s moral claim and the
moral obligation of the institution. However, it would appear in the Benevento Missal claim
that the term “moral claim” can incorporate both of these.
It is likely that where there is an immorality of acquisition there will usually also be the
immorality of deprivation since any wrongful taking will usually involve some morally
reprehensible conduct. However, the relevance of establishing a strong immorality of acquisition may mitigate any weakness in the immorality of deprivation if, for example, the circumstances of dispossession were less morally repugnant then some other acts of spoliation such
as forced seizure.
Having concluded that there is a relevant moral strength to the claim, with the presence
of either the immorality of deprivation or the immorality of acquisition, it is suggested that
this leads to the immorality of retention. Here, the continued retention of the object without
some sort of recompense afforded to the claimants would be morally repugnant. It could be
argued that the stronger the moral claim, the more justification there is for the remedy of
return of the object, rather than some monetary compensation. However such a straightforward
approach will not always be possible. The SAP does not appear to assess the different
gradations of moral culpability when addressing appropriate remedies but instead assesses
whether a moral claim exists (albeit there are references to “strong moral claims”). Therefore,
the strength of the claim does not directly affect the recommendation regarding the remedy.
The particular remedy which the SAP recommends can also be based either on the ability
of the museum’s governing body to dispose of objects from its collections or on the public
interest in keeping the object on public display rather than returning it.
It has been stated that the looting of cultural objects during the Second World War is ultimately a moral or ethical issue which urgently requires a moral or ethical solution.61 However,
it is submitted that the SAP provides the possibility of moral solutions to the resolution of
claims for tainted objects of cultural heritage. Unfortunately such solutions cannot always
be fully reflected in the outcome of the process since statutory bars on the return of such
objects prevent return and necessitate monetary recompense instead. In cases involving
identical moral strengths the remedy can be different depending on the governing body of
the museum and its ability to return the object. This inconsistency of outcome does not fully
reflect the moral nature of the issue and consequently does not always produce a moral outcome.
59
Ibid., [69.2].
ibid. [72 ].
61
Report on a Legal Framework for Free Movement within the Internal Market of Goods whose Ownership is
likely to be Contested (European Parliament, Committee on Legal Affairs and the Internal Market, 26 November
2003) available at <http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A52003-0408+0+DOC+PDF+V0//EN> accessed 16 July 2009 and N Palmer n 57 8.
60
10
CHARLOTTE WOODHEAD
In a sense the Panel’s consideration of the public interest makes a judgment on the cultural
or historical value of the object rather than a moral decision based on the strength of the
immorality of retention and the most appropriate means by which to achieve redress for the
wrongs of the past. Whilst this approach could be viewed as focusing on the key role of
museums as custodians or guardians of our past for the benefit of the future generations, it
could be said to fail in its duties to all stakeholders since it has been argued above that its
duties can really only be fulfilled by a dissociation from objects with tainted provenance.
Having said that, where the claimants receive monetary recompense this could be said to
launder or cleanse the otherwise tainted provenance of the object of cultural heritage. The
provenance or story behind the object may be of importance to the claimants as part of the
redress and the SAP can recommend that a notice is placed next to the object in the museum
recounting its history between 1933-1945. Indeed, in response to the SAP’s first report the
Tate Gallery placed such a notice next to the painting ‘A View of Hampton Court Palace’
by Jan Griffier the Elder recounting the war history of the object. More recently the SAP
has recommended that a notice be placed next to a painting where the moral strength of the
claim was insufficient to warrant any other remedy, even though it was accepted by the
Panel that the sale was predominantly due to Nazi persecution.62
Conclusion
Museums, as the guardians of cultural heritage are best placed to serve the public interest
and to fulfil their obligations to a wide variety of stakeholders. Whilst objects of cultural
heritage on display in museums are accessible to a wide audience, those objects which have
tainted provenance have the potential to negatively impact on the inclusive nature of museums.
Legal impediments imposed on museum governing bodies which prevent them from returning objects of cultural heritage on the basis of moral considerations hamper museums’
abilities to fulfil their roles as guardians of cultural heritage. Furthermore, the increased development of moral resolution to claims is hampered by the prohibitory nature of these museum governing statutes which prevent reasoned and principled resolutions to disputes. The
introduction of legislation enabling museum governing bodies to transfer objects with tainted
provenance would permit UK museums to fulfil their role as inclusive museums. The passage
of the Holocaust (Return of Cultural Objects) Bill has so far received a favourable response
in both the House of Commons and on its second reading in the House of Lords. The
Member of Parliament who presented the Bill to Parliament has described it as being a
friendly consensus on an important issue.63
The transfer of objects of cultural heritage tainted by their Second World War history is
an exception to the general rule that museum collections should remain intact for future
generations. Nevertheless, there are other contentious objects of cultural heritage within
museum collections and important lessons can be learnt from the Spoliation Advisory Panel
and its treatment of moral considerations. Future debates can be enhanced by considering
these current practices involving moral considerations.
62
Report of the Spoliation Advisory Panel in respect of Eight paintings now in the possession of the Samuel
Courtauld Trust (24 June 2009) (2009 HC 757).
63
Andrew Dismore MP Public Bill Committee, ‘Holocaust (Stolen Art) Restitution Bill’ HC (2008-09) col 5 (10
June 2009).
11
THE INTERNATIONAL JOURNAL OF THE INCLUSIVE MUSEUM
About the Author
Charlotte Woodhead
Charlotte Woodhead is a lecturer in Law at the School of Law and Criminology at the University of Derby. Her research interests include the law relating to Cultural Heritage and she
has written a number of articles on the law relating to the repatriation of human remains
from museum collections. More recently she has contributed the chapter ‘Ownership, possession, title and transfer: human remains in museum collections’ to the forthcoming volume
of Modern Studies in Property Law (Hart publishing 2009) She is currently undertaking
studies towards a PhD on a part-time basis at the University of Leicester on the topic of
property rights in Cultural Heritage.
12
EDITORS
Amareswar Galla, The University of Queensland, Brisbane, Australia.
Bill Cope, University of Illinois, Urbana-Champaign, USA.
EDITORIAL ADVISORY BOARD
Corazon S. Alvina, Director, National Museum of the Philippines, Manila,
Philippines.
Ann Davis, Director, The Nickle Arts Museum, University of Calgary,
Alberta, Canada.
Shahid Vawda, Programme on Culture, Heritage and Tourism,
University of KwaZulu-Natal, Durban, South Africa.
Adi Meretui Ratunabuabua, Principal Cultural Development Officer,
Department of Culture and Heritage, Ministry of Fijian Affairs, Culture and
Heritage, Suva, Fiji Islands.
Laishun An, China Friendship Museum, Beijing; Secretary General ICOM 2010,
Shanghai.
Christine Hemmet, Responsable de l’unité patrimoniale des collections Asie,
Musée du quai Branly, Paris, France.
Henry C. (Jatti) Bredekamp, Chief Executive Officer, Iziko Museums of Cape
Town, South Africa.
Lina G. Tahan, Senior Research Fellow, Centre for Tourism and Cultural
Change, Leeds Metropolitan University, Leeds, UK.
Lucía Astudillo Loor, Directora, Museo de los Metales, Cuenca, Ecuador.
Pascal Makambila, Conservateur en chef des musées, Brazzaville, Congo.
Tereza C. Moletta Scheiner, Coordinator, Postgraduate Program in Museology
and Heritage, Federal University of the State of Rio de Janeiro – UNIRIO,
Rio de Janeiro, Brazil.
W. Richard West, Jr., Director, Founding Director Emeritus, National Museum of
the American Indian, Smithsonian Institution, Washington, D.C., USA; Adjunct
Professor, Museum Studies, the University of Queensland, Brisbane.
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