Cultural Property, National

Treasures, Restitution1
by Krzysztof Pomian

Krzysztof Pomian is a historian specializing the socio-cultural history of France, Italy and
Poland. He is professor at the National Centre for Scientific Research in Paris (directeur
d’études à l’Ecole des Hautes Etudes en Sciences Sociales) and editorial adviser to the journal
Le Débat. His publications include: L’ordre du temps (1984), L’Europe et ses nations (1990), Sur
l’histoire (1999) and Des saintes reliques à l’art moderne: Venise-Chicago XIIIème – XXème siècle
(2003).

The restitution of cultural property illegitimately

looted from states, ethnic minorities or individuals
has been discussed more than ever since the
adoption by the General Assembly of UNESCO of
the Convention on the Means of Prohibiting and
Preventing the Illicit Import, Export and Transfer
of Cultural Property on 14 November 1970, and
particularly over the last decade. Take, for
example, the European Communities Council
Directive 93/7/EEC of 15 March 1993 on the
Restitution of Cultural Property Illegitimately
Removed from the Territory of a Member State and
the Private Law Unification Institute’s Convention
on Stolen or Illegally Exported Cultural Property.
There have been cases of amicable settlement such
as the restitution to Iceland by Denmark of 3,000
manuscripts containing saga texts and other
historical documents, initiated in 1971 and
completed before the deadline.

Restitution is not simply discussed more

often – it is discussed in a different manner.
Binding legislation is being promulgated today
whereas up until the nineteenth century thinkers
and theoreticians of international law could at
most merely influence public opinion. The Hague

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ISSUES OF RESTITUTION AND RETURN
conventions of 1899 and 1907 went only so far as
to introduce (Articles 27–28, 46–47, 56) a ban on
the destruction and theft of cultural property,
and the Versailles Treaty (Articles 245 to 247)
ordered the German Reich to return to France, Great
Britain and Belgium works of art and historical
monuments that were identified so accurately that
this one incident could not form a precedent. Hence,
the authorities on the subject, and the present
author is not one of them, remain divided over the
issue of whether international law had any general
provisions, common or statutory, that require the
restitution of cultural property looted during a war
or stolen and illegally exported in peace time.
This did not prevent the anti-Nazi coalition
from effective recovery of cultural property looted
by the Third Reich. It was possible due to the
application of legal standards endorsed by the
civilized world such as the above-mentioned
Hague Conventions, which were brutally violated
by the Nazis on multiple occasions. Furthermore,
it was an act of the victors imposing their way
on the losers, a concept that is not irrelevant for
the fundamental sense of justice. Besides, the
restitution of cultural property looted by the Third
Reich had not been completed for several years
after the war. Only in the past decade has some
property been returned to selected legitimate
owners, for example, the French Jews or their
successors. Until that time, this property had been
tagged ‘owner unknown’ and had been sitting in
French national museums. It was during this time
that works of art confiscated from the Jewish
community were returned to surviving owners by
Austria, which had kept them since the war. The
unclaimed items were auctioned and the proceeds
donated to Holocaust survivors.
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However, the restitution of cultural
property looted by Nazi Germany in countries it
had occupied and then transferred to the Soviet
Union remains unresolved, as is the issue of
cultural property that used to belong to German
private or public collections, but followed the same
path after the war. Much of this property is still in
Russia, though the Soviet Union did honour some
of the claims placed by German museums and
libraries. For example, it returned the Dresden
Library in 1955. Recently, cultural property owned
by collectors from many different countries,
including Germany, and by German museums but
held by Russia, has finally been unveiled and
displayed. Is this just some or all? There seems to
be no convincing answer to this fundamental
question. Hence, it may be feared that, for some
cultural property, the Second World War is not yet
over.
What lies behind this renewed interest in
cultural property restitution over the past decades?
Is it merely an attempt at solving painful problems
inherited in Europe after the Second World War
and a prolonged cult of the state, whose interests,
whether realistic or imaginary, were placed above
the rights of individuals and groups? Or, as the
case may be in other continents, is it an effort to
eradicate the unfortunate legacy of European
supremacy, colonization and discrimination
against indigenous peoples inhabiting the land
captured and settled by Europeans? Or, does it also
reflect a change in the social status and economic
role of such cultural property over the past
centuries, especially with respect to works of art?
In other words, are we witnessing a process of
compensating for the past, ultimately dealing with
outstanding historical issues, or are we to take it to

mean the emergence of, possibly, a new world of
the future, however veiled from our eyes it may
still appear today?
The first of these alternatives is
corroborated by the Hague Convention for the
Protection of Cultural Property in the Event of
Armed Conflict of 21 April 1954, a document
which was evidently inspired by the Second World
War and its aftermath. The Protocol attached to
this Convention requires (para. 3) restitution of
cultural property situated in a territory previously
occupied and forbids keeping these cultural
objects as part of reparations. Incidentally, some
lawyers consider the Protocol – which as a matter
of fact requires a separate ratification – a mere
declaration rather than a binding document.
Importantly, however, the first attempts to resolve
the problem of restitution were already made
within ten years of the end of the war in the
reasonable belief that its negative effects on
cultural property had not been fully ameliorated.
The other of the above-mentioned
alternatives seems viable in the light of the fact that
the most affluent countries – leaders in the field of
technology and science, countries that built up the
most dense network of museums, protected
antiquities, libraries, archives and the like – are
especially responsive to the obligation of cultural
property restitution. This point is well illustrated
by the example of Denmark cited above, and even
more clearly by the example of the United States
which concluded a treaty with Mexico (1970)
requiring the restitution of works of art and
antiquities stolen or exported illicitly, and signed a
similar agreement with Peru (1981). On these
grounds the courts ordered to send back smuggled
Cultural Property, National Treasures, Restitution
Krzysztof Pomian
objects and punished the culprits. Also, in 1990
the US Congress passed the Native American
Graves Protection and Repatriation Act, which
provided for the restoration, to Native Americans
and Inuit tribes, of their ancestors’ remains as well
as religious objects and other elements of their
cultural heritage, from museum collections.
Similar decisions were made in Canada, Australia
and New Zealand.
To be sure, these decisions are, to a great
extent, the result of the ambition to end all forms
of discrimination against the indigenous peoples of
these countries, or at least the ambition to end the
most glaring examples of such discrimination. But
they are also a result of the growing crisis (more
pronounced in Europe, particularly in France) of
statist ideologies which came into prominence
after the Great Crash of 1929 and have shaped state
policies, including economic policies, ever since.
The crisis began in the mid-1970s when projects
undertaken for the sake of a distant future – and
for the sake of the state as its ultimate guarantor –
lost some of their urgency in favour of the
exigencies of the present, implicating the suffering
of individuals and groups. In many countries, this
changed the attitude of the public and
governments towards cultural heritage. It has
also influenced the jurisprudence of today’s
courts, which are now more willing to rule in
favour of individuals and minorities in cases that in
the past would have been usually won by state
administrations.
This coincides with a favourable climate
occasioned by a new demographic and general
mental development: the last surviving generation
to remember the Second World War is now
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ISSUES OF RESTITUTION AND RETURN
gradually reaching retirement, that special time of
memories and of the sentiment to settle, before
death, all matters for which one never had enough
time or courage. A new ideological climate made it
possible for various groups to broach subjects that
until quite recently were strictly taboo and to put
forward claims that have, until lately, seemed
thoroughly hopeless. It became all the easier as
perestroı̈ka, and the subsequent collapse of the
Communist regimes in Central and Eastern
Europe, as well as in the Soviet Union, brought to a
definite end not just the cold war, but the whole
era of the Second World War, and even the whole
grim epoch stretching as far back as 1914. This
helped to bring to light some decisions and
actions that for years had been shrouded in
secrecy; finally, it triggered off a need in people to
find solutions to problems that had remained
unresolved for over fifty years, if not more. Among
such unresolved issues was the problem of illicit
export of cultural property. Since the early 1990s,
this has triggered heated debates at several
international conferences and in numerous
publications.
The above account of the processes that
may be underlying today’s growing interest in the
problems of restitution of cultural property, solid as
it may seem, is far from being exhaustive. It ignores,
for example, the fact that cultural property serves a
much greater role in social life than it did in the
past, which is a reason why people attach greater
importance to works of art than they used to.
In 1999, thirty-two of all the paintings sold
at auctions fetched over €5 million each; one even
topped the 52-million-euro mark. And this is only
a small percentage, albeit most exemplary, of the
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whole global annual turnover of works of art,
estimated at €8 billion. Importantly, these
estimates concern legal dealings alone. Of course,
the extent of illegal dealings remains unknown;
experts believe, however, that in international
trade, works of art are second only to illicit drug
trade. Annually, as many as 60,000 masterpieces
are stolen, nearly half of which are from Italy.
Usually, they are immediately sold abroad. The
black market includes dealings in objects obtained
during secret excavations, from unreported
findings, and anything smuggled out without
required clearances, etc.
If works of art and other cultural objects
circulate among people, people circulate around
the world, among museums, historic buildings,
temporary exhibitions, often far away from their
abodes. Tens or even hundreds of millions of
people are engaged in cultural tourism annually. In
1992, Paris museums, historic buildings and
temporary exhibitions were visited as many as 41
million times, which gives us some idea of the
magnitude of this phenomenon. (Importantly, the
above figure refers to the number of visits and not
to visitors themselves, each of whom probably saw
several museums, historic buildings and
exhibitions.) An average tourist visits at least four
such places during the 2.5 days he or she spends in
Paris. As calculated, 13.5 million people stayed at
Paris hotels in 1992; how many tourists spent a
night in nearby towns, sleeping in coaches or on
camp-sites is anybody’s guess. And Paris is but one
of the numerous cities that attract 10 million
visitors annually.
The profits generated by tourism,
including cultural tourism, are huge (though it is
 Cultural Property, National Treasures, Restitution
Krzysztof Pomian

13. Sir Peter Paul Rubens, Allegory

of Eternity, c. 1625–30, oil on panel,
66 · 34.3 cm. Gift of Anne R.
and Amy Putnam to the San Diego
Museum of Art, 1947; funds for
Nazi-era restitution settlement
provided by the estate of Walter
Fitch III, 2004.

Lucas Cranach, Madonna and

Child in a Landscape, c. 1518, oil
on cradled panel, 16½ · 10¼ in.
Philipp von Gomperz Collection,
Vienna, Austria looted by the Nazis
in 1940 and returned in 2000.
Acquired by the North Carolina
Museum of Art as the partial gift of
the artist’s heirs.
ª 2005 San Diego Museum of Art

13
Ludolf Backhuysen, Coastal Scene
with a Man-of-War and Other
Vessels, 1692 by the Detroit
Institute of Art Museum Purchase,
Robert H. Tannahill Fund, General
Museum Funds; Bequest of Mr
and Mrs Laurence Fischer, by
exchange and gifts of John L.
Booth and Mrs Virginia Booth
Vogel, Mr and Mrs. Lee Hills and
other donors, by exchange.
ª 2001 The Detroit Institute of Art

13

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ISSUES OF RESTITUTION AND RETURN
difficult to estimate the contribution of cultural
tourism to the profits yielded by all tourist
activity). Tourism yields profits to airlines, railway
companies, hotels, restaurants, producers of
luxury goods and large department stores.
Altogether, it generates millions of jobs which
explains why a single disturbance in this industry,
not to mention such a disastrous event as that of
11 September 2001, may have far-reaching
consequences. Museums and historic sites may
at first seem unprofitable. If, however, we
compare the total expenses necessary for their
upkeep and all kinds of costs that need to be
incurred to attract large numbers of visitors, with
total revenues generated by cultural tourism, it
will turn out that the latter by far exceed the
former.
Tourism, then, is a fully fledged global
industry. Given its enormous contribution to the
GNP of some countries, it often ranks alongside
the manufacturing industry and agriculture;
sometimes it may even rank above them.
Importantly, the prominent role of tourism is not
only to be observed in underdeveloped countries,
which have very little to offer beyond ‘sea, sex and
sun’. In fact, this applies to the United States, the
United Kingdom, France, Italy, Germany and
Spain, that is, countries that are highly developed,
and where tourism is, to a great extent, driven by
cultural tourism. Viewed from the perspective of
the economic importance of the art market and
cultural tourism, works of art and cultural
property in general appear to be elements of capital
just like machines, means of transport, buildings,
land and commodities, as all these things generate
revenue. It is, however, a very peculiar kind of
capital.
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Unlike the capital of things, the capital
consisting of semiophores, that is, objects
considered to process cultural or symbolic value,
in particular works of art and cultural property, is
distinguished by the fact that, basically, it is public
in a twofold sense. In a legal sense, it is public
property, that is to say, it belongs to the state, to
local communities or regions, to associations
financed by one or the other, and, particularly in
English-speaking countries, to trusts subject to
control by courts, or even parliaments. At the same
time, under specific conditions, it is made public,
not just because otherwise it would not generate
revenue, but – more importantly – because in most
countries citizens have free access to cultural
property, including works of art, which belong to
the state or local authorities, or are financed from
the public purse. In English-speaking countries,
this right is safeguarded by special clauses in the
bequests of donors of such property who make
contributions to museums, libraries and other such
cultural institutions; these provisions will be
perpetually binding for organizations to which the
property was entrusted.
Cultural property, then, is owned by at
least two entities. One of them is the institution
entrusted with that property, which is responsible
for storing it, preventing damage and displaying it
to the public. The other entity consists of all
citizens of a given state or inhabitants of a region
or town, as the case may be. That collective owner
does not interfere in the day-to-day management of
cultural property, it being the domain of
specialists. They do not intervene unless a major
crisis occurs. Then, all of a sudden, it transpires
that the institution which had been seen as the
rightful owner cannot in fact do anything that

might jeopardize the tradition of passing that
object to subsequent generations – importantly,
future generations belonging to the same
community. In practical terms it means that they
cannot, under any circumstances, be sold outside
the region from which they originate. More
specifically they cannot be sold abroad, or even
outside a given town or region.
To understand fully the consequences of
violating this restriction, imagine the uproar
caused by potential news that the National Art
Collection at the Wawel Hill (Państwowe Zbiory
Sztuki) or the Polish government have decided to
auction off the Szczerbiec (Polish coronation
sword) in London or just the coronation sandals of
King Sigismund August. These examples are
extreme: not all works of art owned by the
public are so well known; those that arouse such
strong emotions are still fewer. In each country,
however, the public knows very well which
works are most likely to stir up people’s
emotions; which are taken as special vehicles of
collective memory of the nation’s illustrious
ancestors and their mighty deeds; which of them
testify to the nation’s lasting contribution to
human culture and are therefore a common
heritage of the citizens of that country. These
works of art embody the nation’s present, past and
future bonds; they will remain a staple element of
their collective identity. It is to those objects that
the above-mentioned restriction applies in the first
place.
That restriction applies also to lesser-
known objects, whose value can only be assessed
by experts. They have the right and obligation to
represent the public, take actions aimed at the
Cultural Property, National Treasures, Restitution
Krzysztof Pomian
protection of jeopardized cultural property. And
objects that from the legal point of view are in
private hands are no exception. In 1989 the Getty
Museum, then situated in Malibu, was ready to pay
£7.6 million for Antonio Canova’s The Three
Graces, owned by the Duke of Bedford, subject to
permission to export the sculpture from the United
Kingdom. An expert was appointed to answer three
questions (in 1952 it was decided that all three
questions must be answered negatively or else the
authorities would not be able to issue the
clearance). Is the object in question strictly
connected with British history and British national
life to the effect that its export would be a great
misfortune for the nation? Is it particularly
valuable in aesthetic terms? Is it particularly
important for art, history or other scientific
research purposes? Since the answers to all three
questions were positive, the administration could
not grant the museum a clearance. Nor did they
have the right to refuse it, as that would have
involved a huge financial loss for the owner. Given
the situation, the British administration decided to
wait until some home institutions that might want
to purchase the sculpture had more time to raise
the sum offered by the Getty Museum – a project
that could not be completed until September 1994.
Thus in 1994 The Three Graces became public
property. As one can see, even when in private
hands, the object is not beyond the control of the
public, represented as it is by appointed experts.
Even in a society where everything has
seemingly been turned into a commodity and can
be freely traded in exchange for either goods or
money, the status of cultural property, and works
of art in particular, is different than that of
ordinary merchandise. The law sanctions that
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ISSUES OF RESTITUTION AND RETURN
specificity of cultural property. From the mid-
nineteenth century onwards, all European
countries started to adopt antiquities acts.
Gradually, their scope broadened to include
historical buildings, works of art, historical
monuments, human output as well as natural
monuments, home-made objects and imports. The
protection of historical and artistic heritage,
sometimes including natural monuments, became
the responsibility of the state; the Republic of Italy
went even so far as to include a special provision in
its constitution of 1947 (Article 9). Similarly, the
UNESCO Convention of November 1970 states in
the preamble that ‘it is incumbent upon every State
to protect the cultural property existing within its
territory against the dangers of theft, clandestine
excavation, and illicit export,’ and requires (in
Article 5) that national services responsible for the
protection of cultural heritage consist of qualified
staff sufficient in number to carry out specific
functions such as keeping a national inventory of
protected property.
The first attempts to regulate the export of
cultural property were made in Renaissance Italy
as early as the late fifteenth century. In the
nineteenth century, however, these regulations
were abandoned as liberal ideas began to spread
the gospel of free trade. Such regression did not
last long. In reaction to the massive sale of
antiquities and works of art, mainly to the United
States, European countries in the twentieth century
began to impose restrictions on private owners as
regards their freedom to do whatever they wish
with those works. There were even rare cases of
expropriation of private owners. Post-Second-
World-War treaties acknowledged the right of all
sovereign countries to protect their cultural
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property. The Treaty of Rome of 1957, which laid
the foundations of the European Economic
Community, as well as the European Union,
cancels (in Articles 30–34) all quantitative
restrictions in trade between Member States, and
the term ‘goods’ introduced in Article 9 is
interpreted as including cultural property. The
Treaty of Rome, however, allows in Article 36
prohibitions or restrictions on imports, exports or
goods in transit, provided they are justified by
special interests of Member States such as ‘the
protection of national treasures possessing artistic,
historic or archaeological value.’
It is important to note that each Member
State reserves the right to adopt its own criteria for
qualifying a work of art or antiquity as a ‘national
treasure.’ By the same token, each Member State
can decide which ‘cultural property’ in the context
of the UNESCO Convention should be placed
under special protection on its territory. In this
respect, the Maastricht Treaty of 1992 did not
make any changes. The above-mentioned directive
of 15 March 1993 issued by the Council of the
European Economic Community affirms the right
of Member States to recognize some works of art as
their national treasures, and to take all the
necessary precautions to protect these national
treasures once internal frontiers have been
abolished.
As already mentioned, cultural property
plays an increasingly prominent role in the world
economy. Statistics show that the importance of
cultural property today is far greater than it was
only a century ago. We have seen how the problem
of cultural property has become a major concern
for European legislators. Is it true, however, that

the position of cultural property today is
unprecedented? Did not the ancient Romans
collect works of art? Indeed they were the first to
pay astronomical sums for them, to have them later
put on display at sanctuaries, porticos and thermae.
Importantly, however, this was only a short-lived
episode, lasting for merely 200 years, and not more
than a few hundred people altogether were
involved in it. Roman art collections did not have
anything to do with the economy; they were
merely an element of otium: religious cult and
entertainment combined.
Our story does not begin with Rome, then,
though Pliny the Elder’s Natural History plays an
important role in it. Private collections reappeared
long after Ancient Rome, in northern Italy and
France nearly seven centuries ago, and they
quickly became popular in all countries of Latin
Christianity among elites educated in the
Humanist spirit. They have not since disappeared.
Museums have existed for five centuries; they have
multiplied and spread the world over. The art
market began to take shape in the sixteenth
century; 100 years later, valuable paintings were
compared to gold ingots. Let us leave the ancient
Romans alone and instead consider the factors that
make the present situation of cultural property
different from the role it played in modern Europe
between the sixteenth and early nineteenth
centuries.
To begin, let us focus on the art market,
then concentrated in the triangle of Amsterdam–
Paris–London. It attracted new clients from among
European cosmopolitan elites, but now has grown
into a world market. Ever since the 1950s New
York City has been its capital, and most of the
Cultural Property, National Treasures, Restitution
Krzysztof Pomian
collectors today come from the United States and
Japan. Nowadays, works of art offered for sale not
only represent European art from antiquity up to
the twentieth century, but also the art of the Far
East, India, Islam, the Americas, Africa, Australia
and Oceania. One can hardly think of a region or
an epoch which would not be of some interest to
art collectors and museums. From classical
sculptures to the most modern installations, from
oil paintings to ektachromes, from furniture to
racing-cars: there is not a single discipline in the
arts for which there is no demand. The supply of
ancient art objects is increasingly limited, as more
and more works find their way into numerous
museums and private collections, which in turn
increases the profitability of illegal procedures:
forgeries, thefts, illicit export. In reaction to these
developments, new safeguards are being adopted:
frequent inspections, legal restrictions, ethical
standards for museum custodians and curators,
high-tech equipment for the police and customs
services.
Increased demand for works of art and
other cultural objects stems from the growing
number of potential buyers as well as the growing
volume of their capital. This in turn brings us to
processes that transformed, within three centuries,
agricultural societies into industrial ones, and
since the 1980s have produced the so-called
communication society. Although these processes
were accompanied by various crises and dramatic
events, although inequalities were only aggravated
instead of being displaced, and although
unresolved conflicts took new forms, these
transformations certainly led to the increase in
work efficiency and the wealth of societies at large.
They also had the effect of raising the average level
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ISSUES OF RESTITUTION AND RETURN
of education and lengthening average leisure time.
Moreover, they also modified relationships
between culture and the economy. In the past,
culture had been completely cut off from, and
stood in opposition to the economy which was
identified entirely with agriculture and industry.
Gradually, as the production and display of
cultural objects grew in volume and became an
important source of income, it developed into an
autonomous branch of the economy. Cheap books,
colourful reproductions, radio, cinema, television,
audio-visual recordings at reasonable prices: all
these both satisfy and feed the need for culture,
particularly where that need has already been
alive. It also awakens such needs where once
there were none. This is not to say that these
needs have become widespread, but they are
certainly no longer the domain of exclusive elites
alone.
All this has yet another dimension, albeit
less palpable. The temporal orientation of collective
beliefs structuring social and public life began to
change in the eighteenth century, first in England
and France. Religions, otherworldly as they are,
focused on the after-life and the past, were
gradually replaced by future-oriented ideologies,
where the future was no longer perceived as
foreordained from the outside, and instead began to
appear as a product of people themselves,
depending on the course of action and means
selected by them. Bonds which had once drawn
strength from a common vision of the hereafter and
the past were being replaced by other bonds
founded on hopes concerning the state’s or the
nation’s this-worldly future, or even on
controversies concerning the best direction for the
nation to take for the sake of posterity. Now, among
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the nation’s full-fledged citizens there were
members of various religious denominations, as
well as agnostics or even athiests. By the same
token, if the nation’s collective identity had been
seen as permanent and settled once and for all, now
it was understood as a collective project of self-
creation, a project of fashioning new institutions
and new forms of social life for the sake of future
generations. In its extreme, this sentiment
manifested itself in radical attempts to break with
the past completely and to create a human society
from scratch – with a new form of government, new
hierarchies, a new education system, a new
calendar, a new system of weights and measures. In
short, nothing less than a new man.
The French Revolution was the first such
attempt. One of the many conflicts of that time –
very similar to conflicts accompanying other
revolutions, like those in Russia or in China –
arose from the disagreement over whether old
masterpieces were part of the shameful heritage
and therefore needed to be destroyed or, on the
contrary, should be harnessed to serve the future,
that is, to be presented to the renewed nation as
guidelines for self-improvement. With the final
victory of advocates of the latter position,
numerous museums were established to display
works which allegedly were once exploited by the
monarchy, aristocracy and clergy for their own
selfish ends.
But the Revolution also spawned a
messianic doctrine whereby France had the right,
indeed was obliged, to liberate works of art held in
other countries by monarchs, emperors and
priests. It was believed that only the French, being
a free people able to determine their own future,

deserved to communicate with great masterpieces.
Between 1792 and 1814, this ideology translated
into a systematic programme of pillaging works of
art across Europe, resulting in thousands of objects
being shipped to France. No secret was even made
of it. Peace treaties imposed on the conquered
nations would include special clauses providing for
the export of cultural property. The actions of
committees responsible for monitoring the entire
process were thoroughly overt, and the looted
masterpieces were received in Paris with
appropriate pomp and circumstance. For a time,
they would be displayed at the Louvre as a
testimony of great victories, later to be dispatched
to some provincial museums unless they were
particularly valuable.
The French ignored the fact that these
works of art had often been displayed or were part
of collections which in a way had been made
accessible for the public. The only thing which
mattered to them was that, under French law, they
were now the private property of their monarch.
Of course, this is not to say that while at the Louvre
they were less accessible than at their original
locations. Still, this is no excuse for the plunder.
However, it is important to understand why in 1814,
having exiled Napoleon to Elba, the countries of
the anti-French coalition were ready, except for
Prussia, to leave in France works that were shown to
the public. It was not until after Waterloo that the
allies, under the growing pressure from Great
Britain, forced occupied France to restitute the
looted masterpieces. Today, however, some of them
are still kept in provincial French museums.
The Revolutionary and Napoleonic
episodes inspired a new attitude towards works of
Cultural Property, National Treasures, Restitution
Krzysztof Pomian
art and cultural property, not just in France but
also in other European countries. Today, even if
they are private property in the eyes of the law,
they are increasingly subject to control by
appropriate authorities and the public at large. The
growing interest in the future, a new development
of the last two centuries, not only manifests itself
in people’s predilection for the entrepreneurial
spirit or experimentalism, an appreciation that
dignifies business activity and confers special
honours upon engineers, bacteriologists and
constructors. It also manifests itself in a new style
of artistic activity, in a new emphasis on
originality, iconoclasm and irreverence towards
tradition. It can be observed in a process whereby
religions are gradually being replaced by
ideologies, which give rise to dissatisfaction with
the sanctuaries of the past, evoke the need for
locations where the contemplated past can be
divorced from the notions of the hereafter, and
associated more with the coming, this-worldly
future.
Art museums, ever more numerous these
days, are such places. They solicit funds from public
institutions and donations from private collectors.
This role is also performed by world exhibitions
which have been organized since the mid-
nineteenth century and new-types of twentieth-
century museums of applied arts, industry and
trade, science, technology, modern art and of local
communities. All of them have multiplied over the
years. In the mid-eighteenth century, museums
existed only in Europe – less than a hundred. In the
mid-nineteenth century, they numbered over a
thousand on the Old Continent, and a handful of
them elsewhere in the Americas, in South Africa and
Asia. Today, there are as many 40,000 worldwide.
ISSN 1350-0775, No. 228 (Vol. 57, No. 4, 2005) 81
ISSUES OF RESTITUTION AND RETURN
The growing number of museums has
fueled demand for works of art, their rivalry has led
public curators and private collectors to broaden
the temporal and spatial scope of their collections,
to the effect that today there is not a single epoch or
a human culture that would not be represented in
museum collections. All this has helped to
transform the art market into a global market.
Thus, over the last 200 years, works of art,
manuscripts and other antiquities became to a
great extent public property. Those still in private
hands are now subject to public control. It is also
believed that even those works of art, outstanding
in aesthetic terms alone, should also become
public property if only because of their aesthetic
value. Hence the notions of ‘national treasures’ and
‘cultural property’ have become staple expressions
in today’s discourse; hence the widespread
conviction that each state is obliged to protect,
both physically and legally, works of art situated
on its territory; hence their special status in times
of both war and peace. The social significance of
the international plunder of works of art, and of
their restitution, has changed since pre-modern
times.
Until the end of the eighteenth century
works of art were the concern of the wealthy, of
princes and rulers. Ever since the early nineteenth
century, however, they have become national
causes. The leaders of the Third Reich, too,
understood it well, albeit in their own special way.
During the Second World War, the plunder of
cultural property was an integral element of their
policy of artistic and historical expropriation
against the conquered nations. With the Jewish
population, it was a prelude to the Holocaust, with
82 Published by Blackwell Publishing, 9600 Garsington Road, Oxford, OX4 2DQ (UK) and 350 Main Street, Malden, MA 02148 (USA)
Slavic nations a prologue to enslavement. Rejected
appeals for the restitution of works of art looted
by the Third Reich from territories it once
occupied cannot be interpreted otherwise than as a
taciturn acceptance of these past wrongs.
It is time to bring the grim legacy of the
Second World War to a definite end in this respect,
too, to redress the wrongs inflicted by totalitarian
regimes and uncover at least some of their dark
secrets. That is to say, the time has now come to
explore and to settle the complex issues of illicit
export of cultural property. All countries should
begin by disclosing all works of art they keep on
their territories, works that prior to 1939 had
belonged to nations occupied during the Second
World War by the Third Reich, and those that had
belonged to Germany. However, since the claims
concern not just works of art shipped illicitly
during the Second World War but also those
exported much earlier, more radical measures
should be adopted and all inventories of cultural
property should be made accessible to everyone
concerned regardless of their nationality.
Naturally, this principle presupposes the existence
of such inventories; where no such inventories
exist, they will have to be drawn up, a project
which in turn may incur considerable costs. It
seems that rich countries involved in these matters
should be ready to meet at least part of these
expenses. The Organization for Security and
Cooperation in Europe (OSCE) is a perfect forum
for the international community to discuss such
problems as inventorying cultural property and
making public existing inventories.
This will be but a first step toward
eliminating all prejudices and suspicions, toward
 Cultural Property, National Treasures, Restitution
Krzysztof Pomian

discrediting innumerable unheard-of stories about Cachin, Françoise. ‘Paris Muséifié’. Le Débat, no. 80, 1994, pp. 293–303.

secret locations, where masterpieces, allegedly lost,

are still stored. Not until then will the parties be
able to enter into bilateral negotiations. (They
cannot be other than bilateral, for only as such may
they lead to amicable settlement of all contentious
issues). Another international conference simply
will not do. Each country must claim and stand up
for its rights; each case should be considered
individually. The whole process will take a lot of
time and test the patience and good-will of all
negotiating parties. It will never be completed
unless the parties are prepared to compromise;
unless they recognize that only some of the
antiquities have a truly incalculable value for their
nations, whereas others are not so important;
unless they cease to see the restitution of looted
cultural property as a blemish on someone’s honour
or a sign of weakness. In fact, the process of
restitution should be seen as an effort to eliminate
sore points that might potentially erupt into serious
international conflicts. It would be a step towards –
as Kant once put it – a state of anarchy conducive to
the formation of the so-called ‘Community of
Nations’ eventually uniting the whole of humanity.
Carducci, Guido. La restitution internationale des biens culturels et des
objets d’art. Droit commun, Directive CEE, Conventions de 1’UNESCO et
d’UNIDROIT, Paris, 1997.
Chastel, André. ‘La notion du patrimoine’ in Pierre Nora (ed.), Les lieux de
mémoire, II: La nation, vol. 2, Paris, Gallimard, 1986, pp. 405–50.
Emiliani, Andrea. Leggi, bandi e provedimenti per la tutela dei beni
artistici e culturali negli antichi stati italiani 1571–1860, Bologna, Nuova
Alfa, 1978.
Gaillard, Yann. Le marché de l’art français aux enchères, Paris, éd.
Economica, 2000.
Greenfield, Jeanette. The Return of Cultural Treasures, Cambridge, 1962.
Jalla, Daniele. Il museo contemporaneo. Introduzione al nuovo sistema
museale italiano, Turin, UTET Liberia, 2000.
Nahlik, Stanisław E. Grabie_z dzieł sztuki. Rodowód zbrodni mie˛dzyna-
rodowej, Wrocław/Kraków, 1958.
Nicholas, Lynn H. The Rape of Europa: The Fate of Europe’s Treasures in
the Third Reich and the Second World War, New York, Alfred A. Knopf,
1994.
Pommier, Edouard. L’art de la liberté. Doctrines et débats de la Révolution
française, Paris, Gallimard, 1991.
‘La Russie, l’Allemagne et la Turquie se disputent le trésor de Troie.’
Le Monde (Paris), 19 April 1996.

NOTES ‘Les trophées de l’armée rouge exposés à Saint-Pétersbourg’, Le Monde

(Paris), 31 March 1995.

1. First published in Grazyna Czubek and Piotr Kosiewski (eds.), Displaced

Cultural Assets: The Case of Western Europe and the Problems of Central
and Eastern European Countries in the Twentieth Century, Warsaw, Stefan
Batory Foundation/TRIO, 2004.

REFERENCES

Akinsha, Konstantin and Grigory Koslov. Stolen Treasure: The Hunt for the
World’s Lost Masterpieces, London, Weidenfeld & Nicolson, 1995.

ISSN 1350-0775, No. 228 (Vol. 57, No. 4, 2005) 83

 ª UNESCO/Peter Stott
14

ª UNESCO/N. Burk
ª UNESCO/N. Burk

14 14

14. In line with the Director-General’s 1978 recommendation and discussed thoroughly at the session of the Return
and Restitution Committee, the Government of Ethiopia and Italy signed a bilateral agreement, in November 2004, on
the return of the Aksum Obelisk and asked for the cooperation of UNESCO in its restitution.
The future location for the Aksum Obelisk. (Top)
Arrival of the Obelisk in Ethiopia.
National celebrations on 24 April 2005.

84 Published by Blackwell Publishing, 9600 Garsington Road, Oxford, OX4 2DQ (UK) and 350 Main Street, Malden, MA 02148 (USA)