The Washington Principles: What They Do Not Bind

Eleven sentences, and a preamble that gives them away

The Washington Conference on Holocaust-Era Assets closed on 3 December 1998 with a document that forty-four governments were willing to sign because signing it cost them nothing. The preamble says so. In developing a consensus on non-binding principles to assist in resolving issues relating to Nazi-confiscated art, it records, the conference recognises that among participating nations there are differing legal systems and that countries act within the context of their own laws.

What follows is eleven sentences. Confiscated art that was never returned should be identified. Records and archives should be open and accessible to researchers, in accordance with the guidelines of the International Council on Archives. Resources and personnel should be devoted to the identification work. Consideration should be given to unavoidable gaps or ambiguities in provenance in light of the passage of time and the circumstances of the Holocaust era. Art found to have been confiscated should be publicised so that pre-war owners or their heirs can be located. A central registry should be attempted. Claimants should be encouraged to come forward. Where owners or heirs are identified, steps should be taken expeditiously to achieve a just and fair solution. Where they are not, a comparable solution should be sought. Bodies established to do this work should have balanced membership. Nations are encouraged to develop national processes, particularly as they relate to alternative dispute resolution mechanisms.

Read that list for what is absent. It does not define confiscation, so it does not say whether a 1936 sale at a third of value qualifies. It does not define a just and fair solution, so restitution, a cash payment and a corrected wall label all satisfy it. It says nothing about limitation periods, good faith purchase or the inalienability of public collections, which are the three doctrines of general law that actually decide contested claims. And it binds no one. The Washington Principles are a specification for machinery, and the machinery is where the law lives.

Five states built machinery, and no two built the same thing

Austria moved first. The Art Restitution Act, adopted in 1998, committed the Republic to identifying movable artworks and cultural objects in the federal collections that had been confiscated during the Nazi period. A Commission for Provenance Research investigates those collections systematically and submits its findings to an Art Restitution Advisory Board, which recommends to the responsible federal minister whether restitution should take place. Two features of that design travel badly and are worth naming: the research is proactive and state-funded rather than claimant-driven, and it is aimed at the state's own holdings. The federal collections are the subject; private collections are not.

France created its commission by decree no. 99-778 of 10 September 1999, under the prime minister, to examine individual claims arising from antisemitic spoliation during the occupation. After the framework law of 22 July 2023 and a decree of 5 January 2024, it was renamed the Commission pour la restitution des biens et l'indemnisation des victimes de spoliations antisemites and given three missions: material and banking spoliation, compensation for spoliated cultural property, and restitution of looted cultural property held in public collections.

The United Kingdom established the Spoliation Advisory Panel in February 2000. Its terms of reference are unusual and repay reading. The panel weighs legal and non-legal obligations, and is directed to consider the moral strength of the claimant's case and any moral obligation resting on the institution. Its proceedings are described as an alternative to litigation and not a process of litigation. Its recommendations are not legally binding, and a claimant who accepts one is expected to treat implementation as full and final settlement of the claim. The Netherlands set up its Restitutions Committee in 2001, with power to issue both recommendations and binding opinions. Germany came last, in 2003.

Consent was the hidden veto, and Germany has now removed it

The German Advisory Commission, known as the Limbach Commission, began work on 14 July 2003 and concluded it on 30 November 2025. Across those twenty-two years it handled roughly twenty-five cases and issued twenty-six recommendations. That is barely one a year, in the jurisdiction holding the largest concentration of the objects in question.

The explanation is on the record of its successor institution: proceedings could take place only if both parties gave consent, and many institutions declined to participate. A claimant with a strong case and an unwilling museum had no forum at all. That is a veto in the hands of the party in possession, sitting inside a system built to honour a principle that recommends expeditious just and fair solutions.

Germany dismantled it. On 13 March 2024 the federal government, the Laender and the local authority associations announced that the commission would be replaced by an arbitration court. An administrative agreement followed, and the Court of Arbitration for Nazi-Looted Cultural Property began work on 1 December 2025, administered by the German Lost Art Foundation. Thirty-six arbitrators were selected on a parity basis, half through representatives of the Jewish community and half through the German state. A claimant can now commence proceedings unilaterally, relying on a standing offer to arbitrate made by more than two hundred public owners and holding institutions. The awards bind, and they rest on an assessment framework with a reduced burden of proof and express presumptions.

Two boundaries should be stated precisely, because they are often lost in the reporting. Only public owners and holding institutions can be respondents; private holders remain outside the system entirely. And the object must be located in Germany. The reform closes the consent gap for museums and leaves the private market where it was.

Switzerland, establishing its own committee in 2024 with a mandate covering both Nazi-era and colonial-era cultural property, adopted the bilateral model that Germany was in the act of abandoning. Its nine to twelve members issue non-binding recommendations, and a case can be opened only by joint agreement of the parties. The Swiss Provenance Research Circle and Jewish community organisations objected that this cuts against the Washington framework's emphasis on accessible national processes. The objection is on the record; the arrangement stands.

The Dutch reversal proves the text does not constrain the reading

In 2012 the Dutch Restitutions Committee adopted a balance-of-interests test, under which the interests of the original owner and the heirs were weighed against the interests of the present holder, a museum's interest in continued possession included. As a construction of the phrase just and fair it is defensible. It is also the construction that generates refusals, and refusals followed.

The government commissioned an evaluation. The Kohnstamm Committee reported on 7 December 2020 under the title Striving for Justice. It identified failures of transparency and accountability, conflicts of interest inside the claims procedure, and a breakdown of communication with claimants. It recommended a presumption of involuntary dispossession running from 30 January 1933, the removal of the balance-of-interests test, an end to reliance on assertions of good faith as a ground for retention, proactive research into wartime histories, an independent help desk for claimants, and confirmation that the restitution policy would carry no termination date.

Two conclusions follow, and both generalise. A jurisdiction widely treated as a leader arrived at a restrictive practice without a word of the Washington text being amended, because the text does not constrain the reading. And the correction arrived through a domestic political process, because there is no other route. The Washington Principles have no compliance body, no reporting cycle, no standing and no remedy.

France moved the obstacle rather than the standard

French public collections are inalienable under article L.451-5 of the code du patrimoine. For a quarter of a century after 1998 that meant a restitution out of a national museum required its own act of parliament. The framework law of 22 July 2023, implemented by the decree of 5 January 2024, created a general derogation: spoliated cultural property can be removed from the public domain and returned to those entitled to it, on the commission's opinion, without a bespoke statute in each case.

This is the most consequential post-Washington reform in any civil law jurisdiction, and it is worth being exact about what it did. It did not lower the standard of proof, redefine spoliation or create a substantive right. It disapplied a rule of public property law that had been obstructing outcomes the French state had already decided it wanted. Most of the resistance in this field is of that character: not disagreement about what happened between 1933 and 1945, but rules of general law written for other purposes that fall across these claims by accident.

On 5 March 2024 the State Department released Best Practices for the Washington Conference Principles on Nazi-Confiscated Art: fifteen practices and three definitions that show what the intervening twenty-six years had exposed. Art means all kinds of cultural property. Confiscated covers all methods of dispossession. A just and fair solution is one that is just and fair primarily for the victims of the Nazis and their heirs, with restitution as the primary solution. Each definition closes an argument that holders had been running successfully. The count of endorsing states has been reported inconsistently and no single figure should be relied on. The document is, like its parent, non-binding.

The pattern across five systems is about access, not about merit

Set the five original systems side by side and the variable that predicts outcomes is not the quality of the underlying histories. It is whether a claimant can compel a forum. Germany produced twenty-six recommendations in twenty-two years under a consent rule and then rebuilt its system around unilateral access and binding awards. The United Kingdom has published reports on fewer than two dozen claims in a quarter of a century, and its panel still cannot bind anyone. Austria's board recommends and a minister decides. The Netherlands adopted a balancing test in 2012 and abandoned it after an independent evaluation in 2020. France left inalienability in place until 2023.

The Center for Art Law's assessment at the twenty-fifth anniversary sharpened a related point about resources. Sotheby's work with the Louvre examined roughly fourteen thousand works for Nazi-era loss, and the American Alliance of Museums' portal listed some thirty thousand objects that changed hands in Europe between 1933 and 1945 across a hundred and seventy-nine museums. That capacity sits with large institutions and large auction houses. A regional museum with three curators and a private owner with a single inherited picture have the same obligations under the principles and none of the means.

The honest summary is that the Washington Principles created an expectation and left every operative choice to national law: who may open a case, whether the holder may refuse, whether the outcome binds, whether a doctrine of public property law is disapplied, and who pays for the research. Those choices have decided more claims than any finding of fact about 1938.