Stealing Beauty: Stopping the Madness of Illicit Art Trafficking

Article excerpt

  I.  INTRODUCTION

 II.  CONCEPTUAL AND FACTUAL BACKGROUND AND
      ANALYSIS
      A. Risky Business: Black Market Art Trade Will
         Never Be Completely Eliminated
      B. Beauty Is in the Eye of the Beholder: Defining
         Cultural Property and the Effect on Regulatory
         Application and Interpretation

III.  THE GRAND ILLUSION: CULTURAL NATIONALISM AND
      INTERNATIONALISM ARE NOT MUTUALLY EXCLUSIVE

 IV.  PROTECTION OF CULTURAL PROPERTY
      A. International Agreements
          1. The 1954 Hague Convention
          2. The 1970 UNESCO Convention and Its
             Implementation in the United States
          3. The 1995 UNDROIT Convention
      B. Cultural Property Protection in the United States
          1. The Role of Criminal Law
          2. Civil Protection
          3. Common Law Replevin
      C. Proposals
          1. Economic Incentives and Preventing Entry to
             the Black Market
          2. International Art Funds

V. CONCLUSION

I. INTRODUCTION

The looting of museums in Iraq during the war on terrorism (1) and the recent theft of Munch's "The Scream" and "Madonna" (2) have once more thrown into the world's spotlight the issues of illicit art trade, its prevention, and repatriation. Governments around the world have recognized the importance of identifying and preserving each nation's cultural heritage and have enacted national legislation and international conventions to facilitate international cooperation toward those ends. (3) The purpose of these enactments is two-fold: the laws attempt 1) to deter theft of "cultural property" and 2) to facilitate repatriation of the property when appropriate. (4) In spite of heightened awareness and the implementation of preventive schemes within and among nations, the problem of black market art trade persists. (5) Based on extrapolations of incidents reported to major police organizations, illicit art trade generates billions of dollars in transactions each year. (6)

The still dominant conceptual framework conceived by John Merryman for analyzing cultural property enactments rests upon a foundation of the binary opposition between cultural internationalism and cultural nationalism. (7) The former term denotes humankind's general interest in any given piece of cultural property, whose interest predominates over that of any nation, and correlates with the free movement of cultural property. (8) The latter term expresses the notion of a national interest in whatever may be considered "its" cultural property and correlates with restrictions on the international art market. (9) As will be explored in greater detail, Merryman reads two major international conventions as reflecting these competing concepts. (10) By extension, laws implementing such conventions and other national laws should also exhibit, to varying degrees, cultural nationalist and internationalist characteristics.

This Comment begins by discussing in Part II the factual and conceptual background of the international regulation of art theft. Subpart II.A discusses the significance of defining cultural property in determining regulatory scope. Subpart II.B describes the nature and causes of black market trade in stolen art. Part III discusses and critiques the theories of cultural nationalism and cultural internationalism, which are the two basic theories underpinning policies regarding regulation of the art trade and the repatriation of stolen cultural property. Part IV analyzes, criticizes, and recommends improvements to the laws that attempt to deter entry of cultural property into the black market and facilitate recovery of that property once it does so. Part V suggests that the goals of cultural property laws may never be achieved, but perhaps the worthier part is the dialogic process by which national officials, art dealers, museum administrators, lawyers, and academics alike contribute to the cultural property debate and the evolving legal framework. …