The Terezin Declaration and the JUST Act: What is right and what is imaginary


Recent media reports have claimed that a bill being considered by the US Congress would allow Jewish organisations to seek compensation for so-called heirless property and make other claims under the 2009 Terezin Declaration. While such fears are entirely imaginary, they represent a good opportunity to examine the Terezin Declaration and the state of its implementation in Poland.

Starting in late 2017, Polish media (including some of the most respected publications) have presented a growing number of dire predictions over the potential effects of the JUST Act (Justice for Uncompensated Survivors Today Act of 2017) currently being considered in the US Congress. According to these opinions, the JUST Act would create the legal grounds for various unspecified Jewish organisations to make claims over Jewish-owned property in Poland which was seized following the Second World War. Such interpretations are based on a complete lack of understanding of the issues related to the Terezin Declaration and a failure to gain even a basic familiarity with the provisions of the proposed JUST Act. However, there is no doubt that if the bill becomes law Poland’s reprivatisation issues related to the goals of the Terezin Declaration will fall under close scrutiny of the US Department of State. Unfortunately, Poland’s implementation of its international obligations stemming from its signing of the 2009 Terezin Declaration is far from satisfactory.

Terezin Declaration of 2009

The Terezin Declaration was signed on 30 June 2009 by the 46 countries (including Poland) participating in the Prague Holocaust Era Assets Conference. The declaration’s scope includes issues of restitution of Jewish private and communal property (both movable and immovable) seized during the war and in its aftermath, the preservation of Jewish cultural heritage, the social welfare needs of Holocaust survivors and their families, as well as research, educational and archival efforts. As a soft-law instrument of international law, the declaration’s language is general and rather abstract in nature, allowing signatory countries to individually develop the legal instruments to fulfil their obligations.

The guiding principles for national mechanisms for the restitution of Jewish property seized during the war and its aftermath are a key element of the declaration. The document contains a number of guidelines which call for restitution systems to be transparent, simple and expeditious and conducted in a nondiscriminatory manner. They provide for private property claims of former owners (or their heirs or successors) to be resolved through in rem restitution or just compensation (as appropriate). Within this subject matter, the declaration also contains general guidelines for resolution of claims in an order based on the victims’ age or their membership in groups which were subject to persecution during the war and in its aftermath.

As is often the case with instruments of international law, the declaration established a mechanism for monitoring the implementation of the obligations undertaken by the signatory countries. The specially-formed European Shoah Legacy Institute (ESLI) was responsible for the creation of reports analysing the signatories’ fulfilment of declaration obligations. After publishing several country-specific reports, as well as 2017’s final comprehensive report on the implementation of the declaration obligations, the ESLI was wound up (read about Wardyński lawyers’ participation in creating the report). The ESLI concluded its operations despite the fact that the declaration’s goals have yet to be met and their implementation by signatory countries remains unsatisfactory.

The JUST Act

In light of the failure to fulfil the Terezin Declaration’s goals and the conclusion of operations by the ESLI in 2017, efforts have been made to shift the responsibility for monitoring of the implementation of the declaration’s goals to a branch of the US federal government. This was the origin of the JUST Act bill (S. 447) which was unanimously passed by the US Senate on 12 December 2017. The bill then passed to the US House of Representatives, which is currently considering it (H.R. 1226). The JUST Act bill calls for monitoring of the fulfilment of declaration-derived obligations in the signatory countries’ legal systems to be shifted to the US Department of State, which would be tasked with presenting its reports to the US Congress.

The idea of placing the responsibility for monitoring the fulfilment of obligations arising from a single one of many international declarations with one of the world’s great powers raises a number of doubts in the international public law context. It would be far better to place this responsibility on an international NGO or a respected academic institution. However, it should be noted that the US Department of State has been monitoring the issue of reprivatisation in a number of Eastern European nations and issuing relevant reports for a number of years. Thus, should the JUST Act become law, it would simply provide a more stable and official framework for the Department of State’s monitoring and reports.

Playing on the fears of organisations claiming Jewish heirless property in Poland

The issue of Jewish heirless property is one of the most problematic aspects of the discussion about legal regulations of the privatisation question in Poland (read more about the need for an extraordinary approach to this issue). It involves Poland-based property which belonged to Jewish victims of the Second World War who, due to the scale of extermination, did not leave either testamentary or statutory heirs of close kinship. Media accounts raise the fears that the Terezin Declaration and JUST Act will allow international Jewish organisations to bring claims for heirless property which had belonged to Polish citizens of Jewish descent—property that should, it is argued, be taken over by the Polish state.

It must be noted that neither the Terezin Declaration nor the JUST Act makes any reference to any such organisations or their potential claims to Jewish heirless property. The issue is only addressed as one of the declaration’s several dozen unresolved points. Still, neither the declaration nor the JUST Act specifies in what manner the issue should be resolved. They simply indicate that this property should be used to meet the social welfare needs of living victims and, potentially, their families. Furthermore, the officially published Terezin Declaration Expert Conclusions that alternative methods of rectifying the damage caused by post-war expropriations of Jewish heirless property include funding local civil society initiatives assisting living survivors of the Shoah, or local institutions tasked with preserving and cultivating Jewish culture and heritage. There is simply no way to identify any part of the Terezin Declaration which could potentially give rise to claims on the heirless property by foreign Jewish organisations. The initiatives suggested by the declaration in reference to heirless Jewish property are all focused on local communities where the heirless assets are located.

Terezin Declaration and the draft neo-nationalisation bill

It is impossible to discuss regulating the issue of Jewish property in Poland without considering the entirety of the country’s reprivatisation debate. The two issues are closely related and must be jointly resolved. Currently, reprivatisation and the related claims system in Poland fail to meet any of the Terezin Declaration standards. This has been stated in numerous domestic and international studies, including the ESLI’s final 2017 report. For now, the Polish legal system provides very limited means for pursuing restitution claims as it bases the proceedings on an examination of the legality of post-war expropriations in light of the post-war era laws. The present approach does not present an axiological challenge to the entirety of post-war expropriation.

The draft neo-nationalisation act presented by the Ministry of Justice on 26 October 2017 (misleadingly referred to as the “Reprivatisation Act”) fails to meet the obligations imposed by the Terezin Declaration, while violating its general principles. In this context, some of the bill’s most questionable provisions involve the issues of citizenship and domicile. The act’s proposed language precludes the ability to obtain even highly limited compensation for property expropriated after the war if the owner or the potential beneficiaries do not posses Polish citizenship or if the owner did not reside in Poland at the time of the expropriation. This provision runs counter to the Terezin Declaration’s Expert Conclusions, which explicitly state that a “nondiscriminatory” approach to restitution claims may not impose “current citizenship and residency requirements” for restitution claims. This is just a single item from an extensive and complex list of exclusions and exceptions included in the ministry’s proposal.

Summary

The proposed JUST Act simply provides a basis for the US Department of State to take over the responsibility for monitoring the fulfilment of obligations established under the Terezin Declaration. Neither the declaration nor the JUST Act can be viewed as a means for anyone to make claims to Jewish heirless property in Poland.

The neo-nationalisation act proposed by the Polish Ministry of Justice completely rejects the standards for resolution of restitution claims for property seized after the Second World War accepted by Poland through its signing of the Terezin Declaration. This is why the JUST Act should be viewed as an initiative which may lead to Poland’s implementation of just solutions in the reprivatisation area as is its obligation under the Terezin Declaration. The use of these standards in the matter of seized Jewish property would mean that they must also apply to the entire scope of post-war expropriations in Poland. Such an approach would create the opportunity to satisfy justified reprivatisation claims by former owners and their legal successors.

Radosław Wiśniewski, Real Estate, Reprivatisation and Private Client practice, Wardyński & Partners