Academic journal article The George Washington International Law Review

U.S. Legal Mechanisms for the Repatriation of Cultural Property: Evaluating Strategies for the Successful Recovery of Claimed National Patrimony

Academic journal article The George Washington International Law Review

U.S. Legal Mechanisms for the Repatriation of Cultural Property: Evaluating Strategies for the Successful Recovery of Claimed National Patrimony

Article excerpt

I. INTRODUCTION

Although the illicit importation of stolen cultural property1 is not a phenomenon unique to the United States,2 this country is widely recognized as home to one of the world's most voraciously acquisitive markets for art, antiquities, and plundered national patrimony.3 According to the United Nations Educational, Scientific, and Cultural Organization (UNESCO), "[n]et imports [of 'collectibles and antiques'] to the United States ($1.1 billion) exceeded those of any other country by more than 20 times in 1998."4 Of course, the immediate victims of this illegal traffic in artifacts, antiquities, and objets d'art are the nations and peoples thereby divested of important pieces of their cultural heritage.5 It is equally true, however, that the illicit acquisition of foreign national patrimony by U.S. citizens strains the United States' relations with source countries.6 As the U.S. Department of State, testifying before the U.S. Senate Committee on Finance, noted:

The governments which have been victimized [by the illicit traffic in objects of cultural interest] have been disturbed at the outflow of these objects to foreign lands, and the appearance in the United States of objects has often given rise to outcries and urgent requests for return by other countries. The United States considers that on grounds of principle, good foreign relations, and concern for the preservation of the cultural heritage of mankind, it should render assistance in these situations.7

In response to such concerns, U.S. domestic law has developed a patchwork of remedies available to foreign governments seeking recovery of cultural property located in the United States.8 Part II of this Note describes each of the remedies currently available under U.S. federal law and considers court cases in which these remedies have been pursued successfully by foreign governments. As discussion of these cases suggests, the likelihood that a foreign government will recover the claimed property depends upon a number of factual variables. Part III of this Note therefore focuses on applying the remedies described in Part II to a hypothetical fact pattern in which a foreign government attempts to recover an article of cultural property located in the United States. This method of analysis-in which the available remedies are evaluated in light of simplified variations on a common theme-attempts to reveal the combinations of factual predicate and legal remedy that offer the best chance for successful recovery of claimed cultural property.

II. DISCUSSION

A. International Legal Efforts to Assist States in the Recovery of Stolen Cultural Property

This Note primarily focuses on U.S. federal law as it relates to the recovery of the national patrimony of foreign states. Domestic law, however, has developed concurrently with the international law of cultural property,9 and the complex relationship between the domestic and international law of cultural property has led to competing academic evaluations of the compatibility of national and international cultural property regimes.10 Some commentators, such as Judith Church, have noted the concurrent "proliferation" of international, regional, and domestic legal efforts to stanch illicit trafficking in cultural property.11 Others, such as Claudia Fox, have argued that competing national and international interests have created inconsistency and incoherence within the body of transnational cultural property law. Fox explained as follows:

[R]ules of common law nations, such as the United States, which protect the rights of the original owner, conflict with the civil law of other nations which favor the rights of the bona fide purchaser. In an effort to strike a balance between these competing interests, the courts have created inconsistencies in the body of law governing stolen cultural property.

[These] competing policies and inconsistent standards governing stolen property cases have created roadblocks to international cooperation. …

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