Plunder, Restitution, and International Law

Abstract

AbstractThe RussianFederal Law on Cultural Valuables Displaced to the USSR as a Result of the Second World War and Located on the Territory of the Russian Federationpurports to establish the legal basis for the Russian state to hold permanent title to the vast majority of the cultural valuables removed from Germany to the Soviet Union at the end of World War II. Russia claims that the cultural objects seized by the Soviet Union constitute “compensatory restitution” for the hundreds of thousands of cultural and artistic valuables seized or destroyed by the Nazis during the war. This article assesses the compatibility of the Russian claim with relevant international law. It does so by tracing the development of the international antiplunder legal regime. It then assesses the Russian claim with respect to three categories of cultural valuables, based on prewar ownership: property belonging to private persons and organizations, property belonging to nonenemy states, and property belonging to enemy states (Axis powers). “Compensatory restitution” does not exist as a category or principle in international law, so the analysis focuses on the legal concept that is most similar and therefore of potential relevance, restitution in kind. If restitution in kind is impermissible under international law, then the broader “compensatory restitution” is, with even greater force, also impermissible. The key finding is that international law does not permit “compensatory restitution,” nor does it permit unilateral seizures of cultural objects under some broader notion of compensation.