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. …