The June 2009 Prague Conference and Terezín Declaration: A New Beginning?August 2009 – Art & Advocacy, Volume 3
The long-awaited international Holocaust Era Assets Conference was held June 26 – 30, 2009, in Prague, Czech Republic. Established as a means to assess the progress made since the 1998 Washington Conference with respect to the worldwide efforts to help Holocaust victims and their families recover property looted by the Nazis, the Prague Conference was comprised of a series of seminars and presentations by international experts in various fields and governmental and NGO representatives, who examined the accomplishments achieved since 1998 and the substantial amount of work that remains to be done. Although the subjects examined during the Conference were wide ranging, the major focus was on Nazi-looted art.
In the months that preceded the Prague Conference, many experts in the field, including Herrick attorneys, participated in and consulted with the Working Group on Looted Art that was formed in preparation for the Conference. Prior to the convening of the Prague Conference, the Group issued its “conclusions,” which included “the urgent need to broaden, deepen, and sustain [the] efforts [since the Washington Conference] in order to ensure just and fair solutions regarding cultural property looted during the Holocaust era and its aftermath.” Acknowledging that “the plundering of cultural property was an integral part of the genocide perpetrated against the Jewish people and of the persecution of others, and that it was a war crime and a crime against humanity,” the Group made several recommendations to the nations participating in the Prague Conference, including: (a) providing adequate funding for provenance research and the ongoing internet publication of provenance information, including full details of looted objects and those of unclear provenance; (b) allowing unhindered access to public and private archives and documentation; (c) adopting restitution legislation to facilitate the identification and recovery of looted cultural assets; (d) establishing national claims procedures for fair and just solutions encompassing decisions based on the merits (and not based on technical defenses such as the passage of time), including: sharing evidence, the presumption of confiscation, relaxed standards of evidence for the original owner, the requirement that the present possessor have the burden of proving the rightfulness of his or her possession, and the elimination of the burdens of financial requirements for claimants; (e) declaring the inapplicability of export, citizenship, inheritance, and cultural heritage laws that bar the restitution of cultural property to claimants; (f) establishing public or private organizations to assist claimants with restitution; (g) forming an international association of provenance researchers to set standards and share information; and (h) encouraging institutions to provide provenance information in all exhibitions or other public presentations that include looted cultural property.
Meanwhile, governmental representatives began circulating drafts of what would eventually be adopted as the final declaration of the Prague Conference. Many observers believed, however, that these early drafts substantially diluted the recommendations of the Working Group on Looted Art. At several meetings organized to discuss the drafts, a number of experts requested that more specific and stronger proposals needed to be addressed in the final declaration. Herrick attorneys were active at these meetings, one of which took place in Krakow, Poland. At that meeting, the participants adopted a set of principles, called the “Krakow Declaration,” and recommended that they be considered for the final declaration at the Prague Conference. The Krakow Declaration urged all nations to: (a) waive, or adopt exceptions to, statutes of limitations or prescription laws that prevent restitution of looted Holocaust property; (b) require governments to conduct systematic surveys of works of art and other cultural objects in their collections, produce inventories thereof, and make these inventories available to the general public; (c) adopt alternative dispute resolution mechanisms to resolve disputes, using qualified and independent experts; (d) open all public records and archives pertaining to the looting of cultural property and to provide incentives for the accessibility of private archives; (e) monitor restitution activity, make public annual reports on claims, and supply accurate information to the public about looted Holocaust property; and (f) create facilities that make available information on restitution procedures in other countries.
At the Prague Conference itself, two days of expert panels addressed these and other issues relating to looted art. Following that, the Conference was devoted to addresses by heads of various governmental and NGO delegations. As head of the United States delegation and as the keynote speaker opening the Prague Conference, Stuart Eizenstat, who spearheaded the Washington Conference when he served as an official in the Clinton Administration, focused on several important issues regarding looted art.
In his keynote address, Ambassador Eizenstat highlighted steps that needed to be taken in several countries to fill the “[l]arge gaps [that] remain between the Washington Principles and the current reality,” including establishing searchable centralized registers, permitting restitution from public museums, creating effective national claims processes, and redoubling the commitment to alternative dispute resolution mechanisms. In addition, he urged the United States to develop an expert advisory group to help claimants and museums resolve ownership disputes. Ambassador Eizenstat also addressed a critical issue of great interest to those who have worked in this area for many years:
“I am also concerned by the tendency for holders of disputed art to seek refuge in technical defenses to avoid potentially meritorious claims, including statutes of limitation; adverse possession; de-accession laws; and export control laws which bar the export of looted art back to their rightful owner, even when its ownership has been established.”
In his address as head of the United States delegation, Ambassador Eizenstat focused on the importance of access by victims and their families to archives that often constitute the key resource to ascertaining and supporting their claims for looted art. He called for “full and immediate access to all official and private archives,” whether national, regional, or local, as well as “access to vital statistics, estate, and post-war compensation records, and immovable and cultural property records.”
The Conference culminated in the adoption by 46 governments of what is now called the “Terezín Declaration,” issued during the poignant concluding ceremony at the Terezín Memorial, site of the Theresienstadt concentration camp to which the Nazis transported more than 100,000 Jews, almost all of whom were murdered either there, in Auschwitz, or in other camps. The Terezín Declaration incorporated several of the changes to the original drafts urged by experts at the many preparatory meetings described above.
Recognizing that “art and cultural property of victims of the Holocaust (Shoah) and other victims of Nazi persecution was confiscated, sequestered and spoliated, by the Nazis, the Fascists and their collaborators through various means including theft, coercion and confiscation, and on grounds of relinquishment as well as forced sales and sales under duress, during the Holocaust era between 1933 – 45 and as an immediate consequence,” the Terezín Declaration endorsed the following principles regarding Nazi-looted art:
- We reaffirm our support of the Washington Conference Principles on Nazi-Confiscated Art and we encourage all parties including public and private institutions and individuals to apply them as well,
- In particular, recognizing that restitution cannot be accomplished without knowledge of potentially looted art and cultural property, we stress the importance for all stakeholders to continue and support intensified systematic provenance research, with due regard to legislation, in both public and private archives, and where relevant to make the results of this research, including ongoing updates, available via the internet, with due regard to privacy rules and regulations. Where it has not already been done, we also recommend the establishment of mechanisms to assist claimants and others in their efforts,
- Keeping in mind the Washington Conference Principles on Nazi-Confiscated Art, and considering the experience acquired since the Washington Conference, we urge all stakeholders to ensure that their legal systems or alternative processes, while taking into account the different legal traditions, facilitate just and fair solutions with regard to Nazi-confiscated and looted art, and to make certain that claims to recover such art are resolved expeditiously and based on the facts and merits of the claims and all the relevant documents submitted by all parties. Governments should consider all relevant issues when applying various legal provisions that may impede the restitution of art and cultural property, in order to achieve just and fair solutions, as well as alternative dispute resolution, where appropriate under law.
With an eye to compliance with these principles, the Declaration also announced the creation of the European Shoah Legacy Institute in Terezín (to be known as the Terezín Institute). The Institute will be a voluntary forum to “note and promote developments” and to develop and share “best practices” in the areas addressed by the Conference and the Declaration. To this end, the Institute will publish regular reports and develop websites to facilitate information sharing with respect to art provenance.
We look forward to further developments around the world as nations and other interested parties now turn toward putting the principles of the Terezín Declaration into practice. As attorneys who have expended substantial efforts in recovering Nazi-looted art for our clients, we are particularly interested in the importance of resolving cases on the basis of merits rather than on the basis of technical defenses, such as statutes of limitations and other doctrines based on the passage of time. We experience regularly the acute need to open up public and private archives that contain critical documentation necessary to assess and support our clients’ claims. We hope that the Terezín Declaration’s words will be turned into action on these most significant issues.2
1 Herrick attorneys Howard N. Spiegler and Lawrence M. Kaye were invited to be observers at the Prague Conference and at meetings of the American delegation. Herrick attorney Charles Goldstein chaired a panel on looted art in his capacity as counsel to the Commission on Art Recovery.
2 Many of the proceedings and documents pertaining to the Prague Conference may be found at www.holocausteraassets.eu.