Looted art: good practices and new trends in ensuring restitution
Introduction: the international framework
The trafficking of stolen art has become as widespread as drugs and firearms.
Past wars, from the colonial era to the Second World War, have provided opportunities for art looting on a massive scale, and the restitution of stolen cultural artefacts remains a problem around the world.
Looting, especially of artworks belonging to victims of the Holocaust, was usually carried out through forced sales or transfers at an artificially low price, and these looted works, displaced from their original site, were after some years acquired by museums or collectors on the basis of lawful transfers.
In this field, the term ‘restitution’ is mostly used for property stolen in times of war or for unlawfully stolen property, while ‘return’ is used for property displaced for the benefit of the colonial power and restored to its country of origin, and also for cases of unlawful export.
Since the second half of the 20th century, states have adopted legislative instruments to regulate the illicit trafficking and the return of improperly removed cultural objects as part of a wider effort to enhance the protection of cultural heritage. They include:
- the 1954 Hague Convention, for the protection of cultural property in the event of armed conflict;
- the 1970 UNESCO Convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property; and
- the 1995 UNIDROIT Convention on stolen or illegally exported cultural objects.
These conventions are not retroactive   and thus apply only to events after their entry into force in each state. This reduces the effectiveness of these instruments, which are not frequently enforced to request restitution.
The European legislator adopted a tool aimed at preventing the illicit trafficking of cultural property within the European Community named Directive 93/7. This was replaced in 2014 by Directive 2014/60, expanding its scope of application to any:
‘object which is classified or defined by a Member State, before or after its unlawful removal from the territory of that Member State, as being among the “national treasures possessing artistic, historic or archaeological value” under national legislation or administrative procedures within the meaning of Article 36 TFEU [Treaty on the Functioning of the European Union]’.
Directive 2014/60 is nevertheless enforceable only in relation to events after 1993.
How the challenge of restitution is tackled now
The limitations of laws governing the return and restitution of illicitly exported or stolen cultural property, and the significant differences between national legal regimes, prevent the return or restitution of cultural objects in many cases.
Likewise, the difficulty in identifying applicable laws, statutes of limitation and prescription periods often leads to failures that frustrate applicants’ expectations in relation to trials aimed at obtaining the return or restitution of the object.
Therefore, the restitution and return processes have more commonly been addressed at a bilateral level, particularly in recent years. Indeed, cases concerning the circulation of cultural property are increasingly settled through diplomatic relationships. The use of non-judicial remedies makes it possible to reconcile all the interests that come to light in specific cases, which can only be guaranteed by means of flexible instruments.
A prime example is Italy, a country that has been exposed in the past to a constant assault on its cultural assets through theft, illegal exports and other criminal actions. Today Italy is involved in restitution practices as a state in which cultural goods have been either unlawfully imported or exported.
Many restitution requests submitted by the Italian government are now executed through bilateral agreements, which, through negotiations, avoid the uncertainty caused by legal proceedings before foreign courts in which often foreign law apply.
In the past decade Italy entered into many agreements for the restitution of cultural goods, works of art and antiquities.
Recently, The Flower Vase, a painting by Jan van Huysum, was restituted to Palazzo Pitti thanks to the intervention of the German Foreign Ministry and the heartfelt appeal of the Uffizi Director, Eike Schimdt. The painting, exhibited at Palazzo Pitti since 1824, was taken during the Nazi occupation of Italy, when it was brought to Germany and all traces of it were lost. Only in 1991 did the artwork reappear in the hands of a German family, who tried to sell it to the Italian state unsuccessfully. This restitution demonstrates how after years of negotiations, a great goal was reached thanks to the cultural diplomacy between the Italian and German governments.
Beside cooperation between states and bilateral agreements, restitution can also take place at a lower level, such as directly with museums or auction houses that may have come into possession in good faith of stolen or looted works. For instance, shortly before the return of The Flower Vase, the Münster University’s Archaeological Museum in Germany also returned the marble head of a statue dating from the 2nd century AD, also stolen during the Second World War from Italy.
Another example of collaboration happened recently between Christie’s and the Italian government, leading in March last year to the return of some artworks stolen between the 1960s and 1980s from Italy, and put on sale on the international market by art dealers.
As part of diplomatic relations, Italy consolidates its commitment not only to request looted works, but also to return unlawfully detained works that are on its territory, as happened recently with the statue of Maria Maddalena by Andrea della Robbia stolen by the Nazis and wrongly returned to Italy on the basis of the agreement between Germany and Italy. The two countries therefore confirm their responsibility in combating illicit traffic in cultural goods and in their commitment to return them.
In the absence of a common legislative framework, alternative methods and solutions, such as mediation and the conclusion of agreements, also achieve a variety of different forms of restitution other than the return of assets based on bilateral consensus and reciprocal concessions. These include long-term loans, restitution accompanied by artistic cooperation between the parties, or memoranda of understandings between states and private parties or with the negotiation of the cultural authorities of the states concerned.
In July, the Cerruti Foundation in Turin reached a deal with the rightful successors of Jacopo del Sellaio’s painting Madonna and Child with the Young St John and Two Angels, which is part of the museum’s collection but was looted by Nazis in France in 1942. The parties successfully reached an agreement according to which the painting will remain in the museum’s collection providing a financial compensation to the heirs.
Moreover, numerous bilateral agreements provide for the conclusion of loans or artistic and scientific cooperation, such as those concluded by Italy with some important United States museums (such as the Metropolitan Museum of Art of New York, the Museum of Fine Arts of Boston, the Princeton University Art Museum, the John Paul Getty Museum of Los Angeles and the Cleveland Museum) whereby Italy will retain ownership rights over cultural property but would allow the US access to the objects through the provision of loans, exchanges and travelling exhibitions.
In recent years, these types of consensual agreements have found fertile ground due to a new sensitivity concerning restitution and return. As to offences committed during the colonial era, the idea that it is a moral duty to proceed with returns is increasing.
In 2018 Emmanuel Macron, the French President, decided to return, by 2021, 26 artworks looted from Benin during the colonial era and located at the Musée du Quai Branly – Jacques Chirac. This decision put pressure in terms of restitution duty on other colonial powers, including the United Kingdom and Germany. As to the UK, the British Museum, holding at least 73,000 objects from Africa, is more inclined to enter into short or long-term loan agreements, rather than to decisive repatriation of looted artefacts, stating that such initiatives would empty Western museums and that collections shall be preserved in their entirety, provided that even temporary returns prove secure and fruitful.
The same reasons are given by the British Museum in relation to the return of the famous Elgin marbles, subjects of a long dispute which Greece tried again to get back during negotiations over Brexit. The British government stated that the return of the Parthenon marbles to Athens was not the subject to negotiation, as the sculptures were legally acquired and had found home in Britain, and represent the world’s shared cultural heritage transcending national boundaries.
As art restitution due to law enforcement is often unsuccessful, it will come to rely more and more on agreements and alternative methods of solutions directly involving stakeholders. The interesting debate continues between the two different attitudes towards restitution: one well represented by France that supports the return of artefacts that were looted historically; and the other stressing the international nature of cultural heritage that is less favourable to return and restitution.
 Art 33 (2) of Hague Convention for the protection of cultural property in the event of armed conflict provides that the Convention ‘shall enter into force, for each High Contracting Party, three months after the deposit of its instrument of ratification or accession’.
 Art 21 of the UNESCO Convention states: “This Convention shall enter into force three months after the date of the deposit of the third instrument of ratification, acceptance or accession, but only with respect to those States which have deposited their respective instruments on or before that date. It shall enter into force with respect to any other State three months after the deposit of its instrument of ratification, acceptance or accession.’
 Art 12 of the Unidroit Convention provides: ‘This Convention shall enter into force on the first day of the sixth month following the date of deposit of the fifth instrument of ratification, acceptance, approval or accession. For each State that ratifies, accepts, approves or accedes to this Convention after the deposit of the fifth instrument of ratification, acceptance, approval or accession, this Convention shall enter into force in respect of that State on the first day of the sixth month following the date of deposit of its instrument of ratification, acceptance, approval or accession.’
 K Nikolentzos, K Voutsa and C Koutsothanasis, ‘What does it take to protect cultural property? Some aspects on the fight against illegal trade of cultural goods from the Greek point of view’ (2017) International Journal of Cultural Property, 367, 368. See also L Casertano, ‘Combating the illicit trafficking of cultural property: the multifaceted response to a complex challenge’ (2020) Global Juris, 2–5.
 Elisabetta Povoledo, ‘75 Years After World War II Theft, a Painting Returns to Italy’ New York Times (19 July 2019) www.nytimes.com/2019/07/19/arts/italy-looted-painting.html accessed 30 July 2020.
 Henri Neuendorf, ‘Christie’s Returned 8 Looted Ancient Artworks to Italy at the Request of the Country’s Government’ Artnet (13 February 2019) https://news.artnet.com/art-world/christies-restitution-italy-1464832 accessed 30 July 2020.
 Catherine Hickley, ‘Italy hands Nazi-looted Renaissance sculpture from the Uffizi to Germany’ The Art Newspaper (21 February 2020) www.theartnewspaper.com/news/italy-hands-nazi-looted-renaissance-sculpture-from-the-uffizi-to-germany accessed 30 July 2020.
 Catherine Hickley, ‘Turin museum pays settlement to Jewish heirs for Renaissance Madonna that was looted by Nazis’ The Art Newspaper (29 July 2020) www.theartnewspaper.com/news/jewish-collector-s-heirs-settle-with-turin-s-fondazione-cerruti-on-looted-madonna accessed 30 July 2020.
 Catherine Hickley, ‘France takes first legal step towards restitutions to Benin and Senegal as cabinet examines new law’ The Art Newspaper (16 July 2020) www.theartnewspaper.com/news/french-cabinet-approves-law-allowing-restitutions-to-benin-and-senegal accessed 30 July 2020.