Thursday, 9 April Panels

In his introduction on Thursday, 9 April, Weller outlined the goals of the project and explained that the panels were intentionally not curated around specific themes. Rather, the organizational team decided to let the speakers present on a topic of their choice that investigated the hermeneutics of restitution in the context of cultural heritage and historical injustice in order to allow the working group members as well as the audience to draw their own throughlines over the course of the conference. Speakers were invited with the aim to represent diversity in respect to academic seniority, world regions, and topics. The conference was divided into sessions featuring three 15-minute panel presentations, followed by an interactive Q&A. This structure allowed a large number of panelists to present over two days while giving participants the opportunity to contribute to the conversation and build their networks.

Mayo Moran (University of Toronto) began with a presentation on the evolution of the law of restitution and the emergence of a contextual variant in addition to the traditional transactional model of restitution. She discussed Bernstein v. Van Heyghen Freres Societe Anonyme (The Gandia), a case from the United States concerning dispossessed Jewish property during the Holocaust that is emblematic of the law of restitution’s traditional hostility toward redressing historic wrongs. She then discussed the restitution of Max Stern’s art collection years after its taking by Nazi forces as a pioneering legal effort that shaped many restitution claims thereafter, as well as the restitution of colonial artifacts from the Vatican archives as an example of contextual restitution. Next, Afolasade Adewumi (University of Ibadan) presented on the preservation of cultural identity as a form of human dignity in the Nigerian context. She discussed the commodification of sacred objects, the contrast between communal trusteeship and individual property ownership, and the importance of developing conditions of restitution that do not reproduce relationships of dependency between states. Following, Jihon Kim (chief of policy at the Korean National Commission for UNESCO) discussed the tension between legal correctness and historical justice in a case where a sacred object originating from Korea but held in Japan was stolen and brought back to Korea. Here, the violation of Japan’s acquisitive conscription property rights conflicted with the ethical justification of returning the object based on its historical context, highlighting the limitations of legal procedures to carry out the process of return.

In the second session, Mattias Goldmann (EBS University, Wiesbaden) outlined two motives underlying the European dispossession of cultural heritage in colonial contexts: appropriation and othering. In Goldmann’s opinion, the appropriation motive served to bolster the national identity of European states by claiming the heritage of “culturally rich” ancient civilizations as part of their own history, while the othering motive aimed to enforce a hierarchy between European national cultures and those of civilizations deemed less advanced or primitive. He then discussed how this distinction impacts the practice of restitution, whereby cultural heritage held for the purpose of appropriation is less readily returned than cultural heritage held for the purpose of othering. Next, Amnon Lehavi (Reichman University) explored the impact of cultural internationalism on the current landscape of restitution. He discussed how soft law norms promulgated in the 1998 Washington Principles in the context of Nazi-looted art have informed the International Institute for the Unification of Private Law’s (UNIDROIT) mission to establish a workable legal framework concerning cultural heritage restitution for all jurisdictions that is consistent with previous work. He then explored how the “just and fair solutions” provision has been problematized in the context of colonial takings, calling for the reconsideration of remedial mechanisms for collective claims. Finally, Maria Julia Ochoa Jimenez (Universidad Loyola) discussed “orphan” cultural properties, which are objects without contextual information about their origin or information based on provenance research. She focused on how to reduce complexities in identifying and assigning ownership of these works and to what extent this can be accomplished through soft law and policy. In the Q&A following the session, a key point of discussion was UNIDROIT’s recent abandonment of its clearinghouse provision for the identification of orphan objects.

In the third session, Patty Gerstenblith (Depaul University, United States) began with a presentation on the mobilization of political will to change the law of cultural heritage. She discussed recent changes to US federal law governing the restitution of Nazi-looted art, including the elimination of the laches defense and other non-merit-based discretionary defenses, as well as a repeal of the “just and fair resolutions” standard for remedies. These amendments were backed with bipartisan support to aid current litigants in advancing their restitution claims. She then discussed the French Senate’s recent vote on a cultural property law targeting objects taken in colonial contexts that would circumvent the inalienability principle that prohibits restitution of items in France’s national heritage collection. The controversy surrounding this proposal reflects the political resistance to change the law despite its coalition of supporters. She concluded by discussing other procedural and substantive considerations that might impact the legal process of restitution, such as the burden of proof, the requirement of affirmative consent, intellectual property rights, and the availability of financial resources. Next, Karolina Kuprecht (ZHAW School of Management and Law) and Rainer Wedde (Wiesbaden Business School) offered a corporate law perspective on the violation of Indigenous cultural property rights by multinational corporations. Using the Dakota Access Pipeline as a case study, they discussed how Credit Suisse’s financial investment in the project implicated a downstream violation of Native American cultural rights under the International Convention for Economic Social and Cultural Rights, the International Convention for Civil and Political Rights, and the United Nations Declaration for the Rights of Indigenous Peoples. However, under international private law, the bank was not bound to these human rights instruments and under no legal duty to ensure that its supply chain’s compliance beyond exercising due diligence. Kuprecht and Wedde then suggested that private international legal conventions replace the due diligence standard with legal liability for human rights violations that occur along supply chains, shifting the norm of corporate accountability from taking preventive measures to bearing great financial risk. Finally, Charlotte Woodhead (University of Warwick) proposed a remedial scheme for the economic restitution of cultural heritage based on the public benefit, or societal gains enjoyed by the public in retaining objects on display in local and national collections. Rooted in the English common law concepts of merit, unjust enrichment, and disgorgement, the key questions of this presentation were how to assess the value of cultural objects and who is empowered to do so.

Next, Christoph Zuschlag (University of Bonn) explored the semantics of legal and extralegal terminology used in matters regarding the return of cultural heritage. He discussed the terms “restitution” and “repatriation,” asserting that while restitution generally carries the connotation of returning a cultural object to its place of origin, repatriation returns a piece of heritage to its national homeland and is more often associated with human remains than cultural artifacts. Next, Lucas de Costa Maciel (University of Leiden) offered a conceptual framing of restitution that goes beyond the physical return of objects by restoring power and authority to the community from which they originate. He argued that repatriation should be understood as a response to ongoing colonial harms and the restoration of life conditions, calling on former imperial states to take up an “ethics of release” in which they relinquish power in their relationships to former colonies instead of voluntarily returning objects on their own terms. To close out the first day, Bianca Herlitz-Ferguson (Yale Law School) presented on the California Reparations Report in 2023, whereby the state government commissioned a working group to study the ongoing effects of slavery upon the African American community and develop policy recommendations of remedial measures to repair its harms. In the report, the working group proposed several remedies following the guidance of the United Nations Principles of Reparations, including the development of an educational curriculum on slavery, direct financial compensation, and an official state-issued apology. While this project amounts to a substantial achievement in the debate on reparations, it has faced political resistance both by political officials and the public. Consequently, many legislative proposals have been vetoed by California Governor Gavin Newsom, and the report has yet to produce any material outcomes.

The first day of the conference would not have been complete without the engagement of participants in each session’s Q&A. These discussions enriched the analyses offered by each of the panelists, with key themes being the impact of terminology and word choice in the practice of cultural heritage law, questions of how proportionality and economic value may factor into proposed remedial solutions, and recent policy developments and proposals such as the removal of the UNIDROIT clearinghouse for the currently named “orphan objects.”

Friday, 10 April Panels

The second day began with a presentation by Ana Filipa Vrdoljak (University of Technology, Sydney) on the challenges faced by former settler-colonial states in instituting remedies for dispossessed Indigenous cultural heritage. Next, Alexander Herman (Institute of Art and Law) presented an analysis of the relationship between law, time, and ethics in cases of historical injustices. He discussed the pillage of the Biblioteca Palatina, in which several manuscripts were dispossessed and returned from and back to Heidelberg over several centuries. Continuing the theme of temporality, Tabitha Oost (University of Amsterdam) discussed the relationship between time and ethics as it relates to repairing historic colonial harms. In exploring how to center the agency and voices of the descendants of colonized people, she discussed the legalist restitution frameworks established for Nazi-looted artwork as a potential model. However, noting the limitations of directly replicating those frameworks in colonial contexts, she advanced that the dispossession of cultural heritage has produced archival silences that make physical restitution an incomplete reparatory measure to redress collective harm and restore the knowledge that a community has lost.

During the second session, Antoinette Maget Dominicé (University of Geneva) discussed media representations of the process of restitution. While compared to representations of looting throughout art history and literature there are few depictions of return, she detailed an account of restitution that occurred in the Bible at Samuel 6, describing the return of the Ark of the Covenant to the city of Beth Shemesh accompanied by an offering of gold. Maget Dominicé offered an interpretation of this story as an illustration of restitution requiring an additional reparatory gesture to repair the harm that has occurred. Tainá Mendonça de Goffredo (Federal University of Ouro Preto) discussed the commodification of Indigenous cultural heritage from Brazil in the European market. Centered on the Tupinambá Cloaks, she detailed the obstacles faced by the Tupinambá people to retrieve these pieces of their heritage. As currently 10 out of the 11 known cloaks are held in European museums, the one restitution that has taken place returned a cloak from Denmark to the city of Rio de Janeiro rather than the tribe itself situated over 1,000 kilometers away. This highlights an added layer of injustice in the process of restitution, whereby the national interests of states in cultural property outweigh Indigenous communities’ rights to their own heritage. Relatedly, Vanessa Thunsmeyer’s presentation (Rijksuniversiteit Groningen) discussed how balancing competing interests in cultural heritage among multiple stakeholders inevitably produces hierarchies of interest and thus sought to explore the conception of justice in the practice of cultural heritage law operating within these hierarchies. The first theoretical framework driving her research was Third World approaches to international law (TWAIL) with the integration of “Fourth World” approaches (FWAIL) that specifically center Indigenous interests in international law. The second was social justice theory, which focuses on maldistribution, misrecognition, and misrepresentation of the interests of disenfranchised groups. She concluded by proposing a web of relations as an alternative to a hierarchy of interests to make visible the nuanced social relationships between various interest groups.

At the last session, Alessandro Chechi (Catholic University of Lille) presented on the history of Italian imperial cultural property dispossession. As the state of Italy has not readily reckoned with its colonial past and the troves of cultural property held in its institutions until recently, Chechi sought to propose legal frameworks that would guide the process of restitution and avoid a “scramble for decolonization” that reproduces dynamics of imperial dependency between Italy and its former colonies. Next, Leora Bilsky (Tel Aviv University) discussed Palestinian jurist Elias Kouusa’s efforts to reform Israel’s absentee property laws from 1949 to 1953, which allowed the state of Israel to condemn Palestinian property without restitution following the Nakba. Koussa argued that Israel owed the individual Palestinians the right to sell their expropriated property, which the government rejected in favor of a collective compensation model that it never enacted. He also urged for the state to remedy the displacement of the Palestinian tenants who occupied these properties, which Israel rejected in its insistence that offering such redress would compel Palestinian refugees to return and reclaim the property. As Koussa’s legal recommendations were never realized, Bilsky highlighted the lasting effects of Israel’s failure to take remedial measures at that time in today’s ongoing heightened military conflict between Palestinian territories and the state. Finally, Zhen Chen (University of Edinburgh) presented on the removal of ancestral remains from colonized territories and their subsequent circulation in Western museums and educational institutions. She discussed the legal status of these remains as quasi-person, rather than traditional property, in order to allow custodians from their community of origin to care for them without claiming ownership of them.

To conclude the conference, three doctoral candidates presented their research on cultural heritage restitution. First, Lara Fischer (University of Bonn) presented her project on the law of restitution and unjust enrichment, which aims to analyze civil law interpretations of the doctrinal principles of this field and how they might apply to cases concerning cultural heritage. Next, Celina Greppler (University of Cologne) presented her research on German military law and the unlawful appropriation of cultural heritage, where she argued that it was only during the postcolonial period that the narrative of lawful appropriation of cultural heritage emerged to bar restitution claims. Lastly, Dorit Selting (University of Bonn) presented her work investigating the relationship between private law theory and the historical dispossession of cultural property during the Holocaust.

The second day focused on several difficult themes, which were reflected in the participants’ discourse following each session. One central issue was the tension between the theoretical and practical implications of the conference itself, with questions raised about the material impact of these discussions in a world of growing injustice. However, these issues were addressed with cautious optimism, as the knowledge production and exchange of ideas resulting from the conference will be pertinent to find resolutions to today’s most pressing issues within and beyond the law of cultural heritage. In closing, Dr. Weller reiterated the central purpose of the project, which is to investigate how interpretations of restitution, reparation, and redress can expand the understanding of the purpose of international cultural heritage law and its efforts to repair grave historical injustices. An edited volume should be published in 2027.