Law360 Canada (May 26, 2026, 8:38 AM EDT) --

James Palmer

During the Holocaust, Nazi Germany and its agents systematically looted approximately 20 per cent of Europe’s art, totalling an estimated 600,000 artworks. Although the restitution of these artworks and other cultural artifacts is very challenging work, the “legal framework” applicable has been evolving over the past few decades to the benefit of the families of despoiled victims.

In 1998, the Washington Conference Principles on Nazi-Confiscated Art, also known as the Washington Declaration, established a “soft law” approach to restitution claims by developing an internationally recognized framework for restitution claims, which was adopted by 44 countries, and was spearheaded by Ambassador Stuart Eizenstat under the Clinton administration in the United States. This framework focused on allowing access to relevant records and archival documents and the right to seek fair and just solutions.

Soon after, Austria (1998), France (1999), the United Kingdom (2000), the Netherlands (2001) and Germany (2003) established restitution committees to examine restitution claims for artworks in their possession and in some instances included claims that were otherwise related to their countries. These restitution committees helped many families achieve the justice they had been seeking for decades. However, these committees by themselves did not provide a comprehensive solution, given potential conflicts of interest.

In 2009, the Terezin Declaration was introduced and went further to address some of the shortcomings revealed over the prior decade. Systematic provenance research in public and private archives was emphasized where it was envisioned that the results found would be shared online, where feasible. The Terezin Declaration helped address the need to adapt legal systems to find fair and just solutions and encouraged the resolution of such claims based upon the facts and merits of the case, rather than being stymied by procedural barriers such as statutes of limitations.

Similarly, the scope of this declaration expanded to include private collections and not only public museums. The Terezin Declaration also made it clear that forced sales and generally those made under duress were also to be included under the Washington Declaration and not simply outright thefts by Nazis or their agents, as stated by Ambassador Eizenstat: “It didn’t have to be outright confiscation, with the Nazis coming in and stripping something off the wall, that if an owner has a requirement of getting money for exit visas, for example, to escape from Germany, if they had to sell their art under forced sale, that was also covered by the Washington principles.” In addition, while the Washington Declaration had been endorsed by 44 states, the Terezin Declaration received the endorsement of 47 states, with the updated declaration expanded to include Judaica and cultural property.

In 2016, President Obama, just a week before he left office, signed off on the new and precedent-setting Holocaust Expropriated Art Recovery (HEAR) Act, which unified the different statutory deadlines of each American state into one federally applied deadline period of six years from knowledge of the location and identity of the possessor of looted property. This enabled many claimants to come forward with compelling claims, however the framework was far from perfect as defendants could still rely upon defences such as forum non conveniens (inconvenient forums) as well as the legal doctrine of laches (delays to filing a legal claim causing disadvantages to possessors), both of which were still in effect and which stymied many deserving families.

In 2024, the U.S. government then introduced the new Best Practices for the Washington Conference Principles, which has been endorsed by 35 countries to date. This new effort clarified and strengthened the 1998 Washington Declaration as well as the 2009 Terezin Declaration by addressing their weaknesses and clarifying definitions for Holocaust-era looted art restitution. As such, it was now understood that sales by persecuted persons between 1933-1945 were assumed to be involuntary transfers, without evidence to the contrary, thereby building upon Terezin’s emphasis on provenance research and fair solutions.

Furthermore, just and fair solutions were prioritized for the families of despoiled victims, and possessors were urged to avoid litigation by using independent expert bodies, public access to archives and simplified legal processes for deaccessioning from state and private collections. In addition to promoting the systematic publication of research findings and encouraging governments to facilitate non-judicial resolutions, which reflected lessons learned since the development of the Washington and Terezin efforts, the framework remained non-binding but morally compelling, with broader endorsement signalling stronger global commitment.

Along with these developments came the relatively recent removal of the Balance of Interest test in The Netherlands, which was originally designed to place the interest of government-supported museums to keep stolen artworks ahead of the rights of claimants to recover them.

Recently, we witnessed the further development of the German Advisory Commission (GAC), which began by providing non-binding decisions requiring the cooperation of both the claimant and the possessor museum, and has since changed to an arbitration tribunal. Revised by way of an administrative agreement in 2025, the GAC is now able to accept unilateral claims against public institutions in Germany and issue legally binding decisions. Switzerland, as well as the region of Flanders in Belgium, have also recently created new restitution commissions, which are welcome developments.

However, of all the changes that have taken place over the past several years, the recent French court decision recognizing the Washington Declaration as guiding the legal decision applied is an important milestone, as the “soft law” approach to protecting the rights of claimants has begun to evolve into formal legal parameters, which were clearly delineated in this decision (Law No. 2023-650 of July 23, 2023).

In addition to these monumental changes came the newly revised HEAR Act, which was passed into law in April of this year and removed laches and forum non conveniens as defences for possessors of looted artworks.

When asked about the wonderful progress that has been made since the implementation of the Washington Declaration and how this has helped many claimants achieve some level of closure and dignity, Ambassador Eizenstat beamed with pride: “When one knows that real heirs are getting something back that was taken from their fathers or grandfathers or aunts or uncles, it is a special satisfaction because you can connect the theory of these Washington principles into reason and best practices with what’s actually happening in real time to real people.… It is with an immense amount of personal satisfaction that I see what’s happening.”

James Palmer established Mondex Corporation in 1993. Driven to do work of meaning, in 1998, encouraged by the Washington Principles, James worked to develop Mondex’s expertise to include the restitution of looted art and other cultural property. Since then, Mondex has cooperated with ministries of culture in the Netherlands, France, Germany and Poland to help shape their restitution policies. James completed his studies at the Canadian universities of York, Laurentian and Western, as well as the University of Nice in France and Heriot-Watt University in Scotland. He holds an honours BA and an MBA, and currently acts as a consultant for Mondex.

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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