"Think You Can Steal Our Caravaggio and Get Away with It? Think Again." an Analysis of the Italian Cultural Property Model

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I. INTRODUCTION

On August 21, 1911, the Mona Lisa was stolen.1 An amateur painter was copying the Mona Lisa at the Louvre, and when he returned the next day to continue working, the enigmatic portrait had vanished.2 After a few hours of frantic searching, the most famous museum in the world was forced to admit that the most famous painting in the world had been stolen from within its own walls.3 The Mona Lisa was a national treasure for France, where the painting has resided for four centuries, gracing the halls of Versailles during the reign of Louis XIV and the walls of Napoleon's bedroom.4 It was one of Leonardo da Vinci's masterpieces-an object of pride for all Italians. But more than that, the Mona Lisa was a global icon, one of the crown jewels in the art collection of humanity.

After two dismal years of searching, the Mona Lisa's captor contacted the Uffizi Gallery in Florence, looking to sell.5 The curators of the Uffizi recognized the painting as the original, and the thief, Vincenzo Peruggia, was arrested.6 Peruggia had worked at the Louvre as a glazier,7 and believed that France had no rightful claim to the portrait.8 He wrote to the Uffizi, "[The Mona Lisa] seems to belong to Italy since its painter was an Italian. My dream is to give back this masterpiece to the land from which it came and to the country that inspired it."9 The portrait was returned to France, but Peruggia was hailed as a national hero and served less than a year in jail.10

Although the Mona Lisa was eventually discovered and returned, this is an infrequent outcome in most cases, as many works of art disappear and are never seen again.11 Furthermore, many stolen objects are nowhere near as well known as the Mona Lisa, resulting in "legal" sales to unbeknownst purchasers.12 Peruggia's stated motive for his grand heist, however, presents a question that plagues the international community-to whom does artwork belong? To the country of origin which asserts a sovereign right to plundered intellectual and cultural property created within its confines? To the good-faith purchaser (whether a museum or an individual) who merely wants to supplement his collection? Or to the global community as a whole?

The answer to this question evades the international community, but not for lack of effort. The United Nations Educational, Scientific, and Cultural Organization (UNESCO) held a convention in 1970 on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (UNESCO Convention). 13 The UNESCO Convention lays out ambitious plans and methods as models that countries should adopt to facilitate both the reclamation of art stolen from a certain country as well as the regulation of the art market and museum acquisition.14 Although the UNESCO Convention has admirable intentions, its aspirations are much too lofty to ever be realized. The UNESCO Convention was not ratified by the entire international community and it is not self-executing,15 and its lack of enforcement has proved to be its downfall.16

The International Institute for the Unification of Private Law (UNIDROIT)17 recognized the deficiencies of the UNESCO Convention and presented its Convention on Stolen or Illegally Exported Cultural Objects (UNIDROIT Convention), open to signature in 1995.18 The UNIDROIT Convention was intended as a complement to the UNESCO Convention, hoping to address the shortcomings that led to ineffective restitution and reclamation efforts.19 Although the UNIDROIT Convention remedies certain aspects of the UNESCO Convention, it contains its own shortcomings as well. Both the UNESCO Convention and the UNIDROIT Convention are merely presentations of ideals that multiple coun tries share. The UNESCO Convention is not self-executing, leaving implementation to individual countries with no consequences for lack of compliance,20 and the self-executing nature of the UNIDROIT Convention is undermined by the small number of signatories nations. …