International Cultural Property Trusts: One Response to Burden of Proof Challenges in Stolen Antiquities Litigation

Article excerpt

I. INTRODUCTION

The United Nations Educational, Social, and Cultural Organization ("UNESCO") has estimated that the international trade in cultural property is worth $5 bilkon annuaky, second in value only to narcotics trafficking.1 As the demand for archaeological and ethnographic materials increases, looters respond with a rekable supply of antiquities by attacking archaeological sites. Because looted antiquities are unique, undocumented, and irreplaceable, traditional bkateral treaties and international trade law have proven insufficient to protect them.2 This Article discusses the issues that arise in an ownership dispute when the boundaries of the ancient culture that created objects overlap modern state borders and suggests that negotiating international cultural property trusts ("ICPTs") is an appropriate response to protect archaeological sites and to provide proper stewardship for cultural treasures.

The futikty of trying to prove ownership by only one country when antiquities were created by a culture whose boundaries span multiple modern states was exhibited in Peru P Johnson,2, in which the court found that Peru could not succeed in claiming artifacts that could have come from Ecuador or Bokvia. The outcome in this case strongly suggests that modern countries sharing such ancient cultural boundaries would benefit by executing multilateral agreements to create ICPTs that delegate their international ktigation claims to a single agent. The creation of multilateral ICPTs that encompass ancient cultural footprints would yield more fair and just repatriation results and increased success of repatriation claims brought in the courts of market countries, particularly the United States. Rather than source countries losing in court because of competing ownership claims, the ICPT would need only prove by a preponderance of the evidence that the object is owned by one of the ICPT's member countries or by the ICPT itself.

This Article discusses (i) the shortcomings of the current framework; (k) the need for a unified claim in American courts by modern states that share ancient cultural boundaries; and (Ui) how ICPTs would lead to more just outcomes for the stewardship of antiquities. Indeed, an ICPT estabkshed by modern states that share ancient cultural boundaries would serve as a deterrent for looting of sites and yield increased scholarship, stronger and more effective stewardship, and enhanced educational opportunities for ak citizens of the world.

II. THE CURRENT FRAMEWORK: THE LOOTING OF SIPÁN AND PERU V JOHNSON

The current legal framework for repatriation of antiquities, or the return of antiquities to their country of origin, is based on national ownership laws enacted by countries with significant troves of property from ancient cultures that supply the international art market ("source countries"). These national ownership laws vest ak of the rights of ownership in the state, rather than in private parties. With ownership comes the right to control international trade, and source countries enact permit and export regulations to help enforce their rights. Many national ownership laws declare the state's ownership over ak antiquities both above and under the ground-that is, over antiquities that have already been discovered as wek as those yet to be excavated. Because of these laws, antiquities that are looted from archaeological sites may be deemed stolen property, and looters who remove the objects and deprive the state of its rights in such objects deemed thieves.

National ownership laws, particularly as they apply in modern states with poktical boundaries that overlap ancient cultural boundaries, were put to the test most directly in Peru v Johnson. This case focused on antiquities from the Moche culture. The Moche-who existed nearly 1,200 years before the rise of the Inca civilization in modern-day Peru - farmed river vakeys along a 220-mke stretch of Peru's northern coast known as the Lamabyeque region. …