Claims for the Repatriation of Cultural Property: Prospects for a Managed Antiquities Market

Pearlstein, William G., Law and Policy in International Business

During the last twenty years, American and European dealers, museums, and private collectors of ancient, oriental, and primitive art have been subjected to an increasing number of "patrimony" claims(1) by artifact-rich "source nations."(2) Such claims typically seek the return or "repatriation" of an item of cultural property(3) that has either been stolen from its owner in the source nation or exported in violation of a national "found-in-the-ground" law.(4) The increase in patrimony claims has coincided with a proliferation of national legislation(5) and bilateral and multilateral agreements(6) regarding the protection of cultural property that have had "only a minimal impact on the problem of illicit trade in cultural property."(7)

Nevertheless, the cumulative effect of the patrimony claims has been to chill the overall appetite of U.S. market participants for new acquisitions to the point that, unless the present trend is reversed, the long term viability of the U.S. antiquities market may be in doubt.(8) This chilling effect extends not only to the high-end of the antiquities market, where the market value of an acquisition can justify the legal costs of a patrimony claim, but to the great majority of redundant antiquities that lack special archeological, historical, or cultural significance to any particular source nation.

This Article reviews the respective legal positions of the source nations and the dealers, museums, and private collectors who participate in the international antiquities market and proposes a managed, self-policing market mechanism which might be acceptable both to the market participants and to source nations. This Article begins from two premises. The first is that international cultural exchange is inherently desirable and that a legitimate international market for cultural property should exist as a medium for that exchange. The second is that many, if not most, antiquities are redundant or otherwise lack special archeological, historical, or cultural significance to their source nations. It is this broad class of antiquities that should be the subject matter of an unobjectionable international antiquities trade.(9)

With these premises in mind, this Article attempts to reconcile the competing demands of source nations and market participants by evaluating whether and under what circumstances the international antiquities market could be voluntarily restructured by the source nations and the market participants so as to preserve a robust U.S. antiquities market while enhancing the likelihood of preserving unexamined archeological sites in site and withholding from the market the relatively few objects of cultural property that rise to the level of a source nation's cultural patrimony.(10)

Part II of this Article reviews the respective legal positions of the source nations and antiquities market participants. It begins by considering the distinction between claims for the repatriation of stolen cultural property and claims for the repatriation of cultural property that has been exported in violation of a found-in-the-ground law. This is followed by a review of the few patrimony claims that have been adjudicated by U.S. courts. These cases have established a threshold test for analysis of repatriation claims: to prevail in a civil claim for repatriation of cultural property, the plaintiff must prove that the object in question was removed from the claiming country at a time when a cultural property law was in effect that clearly vested ownership of the object in the government. Only if this test is met does the court consider whether it should enforce the foreign claim. No plaintiff to date has satisfied this initial burden, leaving the issue of the enforceability of found-in-the-ground laws in civil cases unresolved. Part 11 concludes with a review of recent patrimony claims, especially by the Republic of Turkey, that have either been settled out of court or remain to be adjudicated. In part because of the uncertain state of U.S. case law, source nations have sometimes been able to force repatriation without litigation. The effect has been to create confusion and uncertainty in the antiquities market regardless of the legal merits of a particular claim.

Part III proposes a mechanism by which it would be possible to reconcile the competing demands of the source nations and market participants. The proposed mechanism depends on reform of the cultural property practices of the most significant source nations to permit the controlled export of redundant antiquities that have no significant link to the culture or history of the exporting nation." Simultaneously, the market participants, acting collectively under the aegis of existing museum and, perhaps, dealer associations, would undertake to the source nations to police their own acquisition practices.

Part III begins with a review of the ethical rules and guidelines of existing dealer and museum associations and the conclusion that such a managed market would be consistent with the ethical standards of those associations. It considers possible objections and obstacles to the managed antiquities market proposal, including the presumed reluctance of both market participants and source nations to participate in such a regime, and observes that participation by source nations in such a managed market would be consistent with the existing cultural property practices of Japan and England.

Part IV of this Article concludes that the market mechanism proposed in Part III would be beneficial to the long-term health of the U.S. antiquities market. Unless and until a U.S. court unambiguously refuses to enforce a patrimony claim that has survived the initial threshold established by current U.S. case law, or otherwise clarifies the circumstances under which a claim for repatriation will be enforced, the U.S. antiquities market will continue to be chilled by patrimony claims. In the absence of some mutually acceptable accommodation between source nations and market participants, the antiquities market-especially the high-end of the market, which is most vulnerable to patrimony claims-may migrate from the United States to foreign jurisdictions that provide a less sympathetic forum for patrimony claims.

II. THE CURRENT STATE OF THE INTERNATIONAL ANTIQUITIES MARKET

A. Stolen Art and Found-in-the-ground Laws

"Stolen art" cases generally involve a claim to recover cultural property stolen from a prior owner. 1 2Such cases typically plead conversion or replevin(13) and rely on the common law rule that even a bonafide purchaser cannot acquire good title to property as against the rightful owner. Although these cases raise important legal issues,(14) they do not treat cultural property differently than any other stolen property, and therefore do not pose a special threat to the dealers, museums, and collectors that constitute the international market in cultural property.

By contrast, found-in-the-ground laws are especially targeted at internationally traded cultural property. Found-in-the-ground laws embody the position of source nations that any cultural property exported in violation of national law is subject to repatriation, even if it was not stolen in the traditional sense. Found-in-the-ground laws are intended both to protect archeological sites from looting and to prevent the outflow of cultural property to consumers in wealthy market nations,(15) with the ultimate goal of preserving the source nation's cultural heritage as embodied in the items of cultural property that define that heritage, i.e., its "cultural patrimony." In the view of the source nations, the export of cultural property in violation of such a law amounts to theft.(16)

Found-in-the-ground laws have been criticized on two grounds. First, such laws have been called ineffective, difficult to enforce, and counterproductive, in that they encourage a black market in cultural property.(17) To the extent that they are effective, they can result in the retention of cultural property by a nation that values their possession but that may lack the expertise or resources to ensure their physical preservation, public display, or scholarly study.(18) For that reason, such laws have been said to embody a policy of "covetous neglect."(19)

Found-in-the-ground laws typically are also indiscriminate, all inclusive, and over-inclusive.(20) They generally apply not only to the small class of cultural property that can plausibly be said to belong to a source nation's cultural patrimony (i.e., those with special archeological, historical, or cultural significance to the source nation) but to every object discovered in the source nation, even if the object was created elsewhere or is redundant in its Class.(21) Because of their all-inclusive nature, such laws have been criticized as representing a philosophy of retentive cultural nationalism.(22)

In keeping with the "retentive cultural nationalism" philosophy, certain source nations have adopted an aggressive litigation strategy intended to chill the international market for cultural property and deter the market participants from making new acquisitions.(23) Turkey is the most aggressive litigant among the source nations.(24) The Turkish Minister of Museums and Monuments has confirmed that its litigation strategy is intended to deter participants in the international antiquities market from acquiring antiquities of putative Turkish origin, stating:

Collectors are increasingly afraid of Turkey .... Now, they

think twice about buying Turkish antiques because they know

that if the antiques are stolen, Turkey will come after them. Why

spend a million dollars on a collection of antiques when, after a

public exhibition or after we get wind of the antiques, we

present a claim? Collectors don't want that.(25)

B. Applicable Case Law

There is no clear authority in Anglo-American common law for enforcing patrimony claims. Historically, the rule has been that the importation of an object into one country is not illegal simply because it was illegally exported from another.(26) Patrimony claims typically argue that the effect of a found-in-the-ground law is to vest title to an object in the state automatically upon its discovery, making objects exported in violation of such laws not merely illegally exported but stolen property.(27) If that position were accepted by the courts of an importing nation, all illegally exported art would be deemed "stolen" and hence subject to recovery by the exporting nation, as in the "stolen art" cases discussed above.(28)

English courts have rejected the argument that objects exported in violation of found-in-the-ground laws are stolen property. In Attorney General of New Zealand v. Ortiz,(29) an English court rejected the argument that title to a valuable Maori carving exported from New Zealand in violation of the New Zealand Historic Articles Act of 1962 automatically vested in the Crown absent confiscation. In addition, New Zealand customs law could not be read to provide for forfeiture on export, since that would give New Zealand law extraterritorial application, in violation of international law. The court concluded that a law providing for forfeiture of art works upon export would not be enforced by courts of importing nations "because it is an act done in the exercise of sovereign authority which will not be enforced outside its own territory."(30)

The development of U.S. case law involving claims for the repatriation of cultural property has been more complex. During the 1970s, the United States successfully prosecuted importers of illegally exported cultural property under the National Stolen Property Act (NSPA).(31) In two cases, pre-Columbian objects that had been exported in violation of Mexican(32) and Guatemalan(33) found-in-the-ground laws were held to be "stolen" within the meaning of the NSPA.(34) However, the United States has not pursued any prosecutions under the NSPA since 1979.

In addition to the criminal prosecutions under the NSPA, only three civil cases have been adjudicated in the United States involving patrimony claims by exporting nations. In Jeanneret v. Vichey,(35) the U.S. Court of Appeals concluded that, so long as both the owner and the painting at issue remained outside Italy, various Italian statutes purportedly restricting its transfer did not create a claim by Italy for confiscation or give rise to a penalty.(36) Jeanneret, like Ortiz and King of Italy v. Marquis Cosimo de Medici Tournaquinci, thus supports the rule that export restrictions need not be given effect by the courts of an importing nation if they are not reduced to judgment prior to export.

The court in Jeanneret noted expert testimony that the painting had become unmarketable and concluded that it was …

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Publication information: Article title: Claims for the Repatriation of Cultural Property: Prospects for a Managed Antiquities Market. Contributors: Pearlstein, William G. - Author. Journal title: Law and Policy in International Business. Volume: 28. Issue: 1 Publication date: Fall 1996. Page number: 123+. © Georgetown University Law Center Fall 1997. COPYRIGHT 1996 Gale Group.

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