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| Judge Tompkins (left) with Nicholas O'Donnell, Jerker Rydén, and Joris Kila (right) |
After
a delicious lunch served by the staff of La
Locanda in the beautiful chiostro everyone settled back into their seats to
listen to Panel Three. Moderating the panel was Judge Arthur Tompkins, a District
Court Judge in New Zealand and a professor on ARCA’s Postgraduate Certificate
program.
The first panelist was Nicholas M. O’Donnell, a litigation partner with Sullivan & Worcester LLP in Boston and New York, whose practice focuses primarily on complex civil litigation, representing collectors, dealers, artists and museums. O'Donnell is also the editor of The Art LawReport. O’Donnell’s presentation, “American Wartime Art Restitution Litigation in the 1990s and Beyond—Has it All Been Worth It?” looked at the difficult subject of art restitution, specifically its reception in America since the 1998 Washington Conference, when awareness of the problem was ignited.
O'Donnell used a number of case studies to understand if there has been a shift in how restitution cases are being addressed in courts. He said that the Portrait of Wally affair, and the case of Maria Atlmann and her claim of five paintings by Gustav Klimt, seemed to infer that a change had occurred, however the use of the Foreign Sovereign Immunities Act and the fact that courts are regularly dismissing claims based on statutes of limitations seems to indicate that courts are still very much against the claimants in art restitution cases.
O’Donnell emphasized that in almost all cases the battleground is the statute of limitations but he also pointed out that the FSIA has its own issues. To demonstrate his point he spoke of the Chabad Lubavitch library dispute. Currently Russia is being fined $50,000 for every day it defies the judgment held by US District Court for the District of Columbia on January 16 2013. Charges will be halted once Russia returns thelibrary of the late Menachem Schneerson to the plaintiffs, the current leadership of the worldwide Chabad Lubavitch movement, which they seem unlikely to do. O’Donnell spoke of the impact of this case on international relations and the art world and in his closing slides he reviewed what the future litigation, legislation, and diplomacy in cases of wartime restitution in the United States might consequently look like.
The first panelist was Nicholas M. O’Donnell, a litigation partner with Sullivan & Worcester LLP in Boston and New York, whose practice focuses primarily on complex civil litigation, representing collectors, dealers, artists and museums. O'Donnell is also the editor of The Art LawReport. O’Donnell’s presentation, “American Wartime Art Restitution Litigation in the 1990s and Beyond—Has it All Been Worth It?” looked at the difficult subject of art restitution, specifically its reception in America since the 1998 Washington Conference, when awareness of the problem was ignited.
O'Donnell used a number of case studies to understand if there has been a shift in how restitution cases are being addressed in courts. He said that the Portrait of Wally affair, and the case of Maria Atlmann and her claim of five paintings by Gustav Klimt, seemed to infer that a change had occurred, however the use of the Foreign Sovereign Immunities Act and the fact that courts are regularly dismissing claims based on statutes of limitations seems to indicate that courts are still very much against the claimants in art restitution cases.
O’Donnell emphasized that in almost all cases the battleground is the statute of limitations but he also pointed out that the FSIA has its own issues. To demonstrate his point he spoke of the Chabad Lubavitch library dispute. Currently Russia is being fined $50,000 for every day it defies the judgment held by US District Court for the District of Columbia on January 16 2013. Charges will be halted once Russia returns thelibrary of the late Menachem Schneerson to the plaintiffs, the current leadership of the worldwide Chabad Lubavitch movement, which they seem unlikely to do. O’Donnell spoke of the impact of this case on international relations and the art world and in his closing slides he reviewed what the future litigation, legislation, and diplomacy in cases of wartime restitution in the United States might consequently look like.
The second presentation was given by Jerker
Rydén, the Senior Legal Advisor of the Royal Library of Sweden. Rydén has worked
as a judge, a lawyer in private practice, and a national delegate to
international copyright proceedings as well as senior legal advisor of the
National Heritage Board of Sweden. In the recent past he has worked closely
with assistant United States attorney Sharon Cohen Levin of the U.S. Attorney's Office
for the Southern District of New York and the Federal Bureau of Investigation
to help track and recover unique and valuable historical works that had been
stolen from the library collections. In his presentation,
“Skullduggery in the Stacks: Recovering stolen books for the Royal Library of
Sweden” he discussed the legal and practical issues that faces the Royal
Library of Sweden as it attempts to recover the 62 books
that were stolen by Anders Burius, a former director of the Royal Library
Manuscript Department, who was arrested in 2004 and who later committed
suicide. [More details provided here by A.M.C. Knutsson]
Rydén used this case to
explain the many techniques that are used by book thieves, such as breaking
books into sub-parts and stealing and erasing finding aides (i.e., card
catalogue entries) which means that such thefts can go undiscovered for decades.
He spoke of the role of auction houses and booksellers in aiding book thieves
by not doing their due diligence on the sellers and by not asking for
provenance on the items. He went on to describe the book recovery efforts of
the law enforcement in the United States and in Europe and the recovery efforts
of industry organisations, such as international databases. At the end of his
presentation Rydén made a point of saying that the effects of such thefts can
damage the collective memory of a nation, which he described as ‘just like
permanent brain damage’.
The panel was brought to a close with a presentation by
Joris Kila who is a senior
researcher at the University of Vienna and
reserve Lieutenant Colonel in the Dutch army. He is board member of the World
Association for the Protection of Tangible and Intangible Cultural Heritage in
Times of Armed Conflict in Rome, chairman
of the International Cultural Resources Working Group and a member of the Research Forum on
the Law of Armed Conflict and Peace Operations in the Netherlands as well as
being a guest lecturer and researcher at the Netherlands
and Austrian Defense Academies.
Dr. Kila's presentation, “An update on Armed
Conflict and Heritage”, focused on the status of cultural property in recent areas of conflict. He described how
cultural heritage has always been available for damage and manipulation thanks to its place in
museums and other public spaces and its incontestable link to glorified and
idealized pasts and as such it will continue to be heavily disputed and contested
in future wartime conflicts as
well as in pre- and post conflict phases. The
damaging or destruction of cultural property is attacking the identity of the
opponent while at the same time
looting of cultural objects can be
beneficial for the opposing forces such as insurgents for financial reasons
thus generating a security issue to be taken into account by military
organizations. Because of these
issues it is clear that cultural property needs protecting in areas of
conflict. Kila pointed out that research into current conflict and heritage aspects is lacking and is in desperate need of
funding.
Dr. Kila's presentation covered a
number of new developments and dilemmas in the international heritage discourse
such as heritage and identity, trauma scapes, issues of increasing iconoclasm
and debates about selecting what to preserve. Finally he spoke of today's situations in Egypt, Libya and
Syria, as he has experienced and witnessed it in person, and emphasized that
the situations in these war zones must be factored into these discussions.
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