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Two Ways of Thinking about Cultural Property

Published online by Cambridge University Press:  27 February 2017

John Henry Merryman
John Henry Merryman*
Affiliation:
Department of Art, Stanford University
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Extract

One way of thinking about cultural property—i.e., objects of artistic, archaeological, ethnological or historical interest—is as components of a common human culture, whatever their places of origin or present location, independent of property rights or national jurisdiction. That is the attitude embodied in the Convention for the Protection of Cultural Property in the Event of Armed Conflict of May 14, 1954 (hereinafter “Hague 1954”), which culminates a development in the international law of war that began in the mid-19th century.

Type
Research Article
Information
American Journal of International Law , Volume 80 , Issue 4 , October 1986 , pp. 831 - 853
Copyright
Copyright © American Society of International Law 1986

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References

1 Any comprehensive definition of cultural property would have to include such objects and much more. Thus, the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of 1970, infra note 6, defines cultural property in Article 1 to include:

(a) Rare collections and specimens of fauna, flora, minerals and anatomy, and objects of paleontological interest;

(b) property relating to history, including the history of science and technology and military and social history . . .;

(c) products of archaeological excavations . . .,

(d) elements of artistic or historical monuments or archaeological sites which have been dismembered;

(e) antiquities more than one hundred years old, such as inscriptions, coins and engraved seals;

(f) objects of ethnological interest;

(g) property of artistic interest . . .;

(h) rare manuscripts and incunabula, old books, documents and publications of special interest . . .;

(i) postage, revenue and similar stamps . . .;

(j) archives, including sound, photographic and cinematographic archives;

(k) articles of furniture more than one hundred years old and old musical instruments.

In some nations, cultural objects and environmental treasures (including natural and artificial landscapes and ecological areas, plus, in cities, urban structures and panoramas) are treated as fundamentally related to each other. See Alibrandi, T. & Ferri, P., I Beni Culturali e Ambient Ali (1985)Google Scholar. Cf. UNESCO Convention for the Protection of the World Cultural and Natural Heritage, Nov. 16, 1972, UNESCO Doc. 17/C/106 (1972). For a discussion of folklore as cultural property, see Glassie, Archaeology and Folklore: Common Anxieties, Common Hopes, in Historical Archaeology and the Importance of Material Things 23 (L. Ferguson ed. 1977).

The entire question of the proper definition of cultural property for legal and policy purposes is a large and unruly one that fortunately need not be pursued here. Works of art and archaeological and ethnological objects surely qualify under any definition; museums acquire and display them, scholars study them, collectors collect them and dealers sell them. National laws and international conventions provide for their preservation and regulate trade in them. A strong international consensus supports their inclusion in any definition of cultural property.

2 249 UNTS 240. The conference that produced Hague 1954 was called by UNESCO, so it is right to think of the Convention as to some extent a UNESCO product. The differences between Hague 1954 and UNESCO 1970 that are described in this article flow to some extent from the different subject matters of the two Conventions, but they also reflect the changes that have taken place in UNESCO’s membership, structure, program and ideology since 1954.

3 Prott, L. & O’Keefe, P., National Legal Control of Illicit Traffic in Cultural Property 2 (UNESCO 1983)Google Scholar, include a third category of “transit countries” which, though useful for other purposes, is not relevant here.

4 The reader will not need to be reminded that a nation can be both a source of and a market for cultural property. For example, there is a strong market abroad for works of North American Indian cultures, even though Canada and the United States are thought of primarily as market nations. Conversely, there are wealthy collectors of foreign as well as national cultural objects in most source nations.

5 The question why nations prohibit the export of cultural property is an unexpectedly complex and interesting one that I will treat in another article. On the surface, it seems that there are several levels of motivation: romantic Byronism (see Merryman, , Thinking about the Elgin Marbles, 83 Mich. L. Rev. 1880, 1903–05 (1985)Google Scholar); the notion of “national cultural patrimony” and related political/symbolic uses of cultural property; lack of the cultural expertise and organization to deal with cultural property as a resource, like other resources, to be managed and exploited; entrenched interests that illegally, but profitably, exploit cultural property and favor perpetuation of the status quo; and so on.

6 823 UNTS 231, reprinted in 10 ILM 289 (1971).

7 Taylor, Foreword, in The Law of War: A Documentary History, at xv (L. Friedman ed. 1972) [hereinafter cited as Friedman]; cf Hartigan, R., Lieber’s Code and the Law of War (1983)Google Scholar.

Lieber, of course, was not the first to argue for protection of cultural property from damage or seizure by belligerents. Polybius of Athens, a Greek historian of the 3d–2d century B.C., is frequently quoted as the earliest such advocate. See De, Visscher, La Protection Internationale des objets d’art et des monuments historiques (2me partie), 16 Revue de Droit International et de Législation Comparée (3d ser.) 246, 247 (1935)Google Scholar, translated and republished as De, Visscher, International Protection of Works of Art and Historic Monuments, 1 U.S. Dep’t of State, Documents and State Papers 821, 823 (1949)Google Scholar (quoting Polybius).

8 Friedman, supra note 7, at 165; R. Hartigan, supra note 7, at 51–52.

9 Friedman, supra note 7, at 195.

10 Resolutions of the Institute of International Law 36–37 (J. B. Scott ed. 1916).

11 For the Convention, July 29, 1899, see 32 Stat. 1803, TS No. 403, reprinted in Friedman, supra note 7, at 234.

12 For the Convention, Oct. 18, 1907, see 36 Stat. 2277, TS No. 539, reprinted in Friedman, supra note 7, at 323.

13 Oct. 18, 1907, 36 Stat. 2351, TS No. 542.

14 Friedman, supra note 7, at 441.

15 Apr. 15, 1935, 49 Stat. 3267, TS No. 899, 167 LNTS 279. Roerich was a Russian painter, poet and activist on behalf of cultural preservation who also lived in Finland, Britain, the United States and India, where he died in 1947. His draft of a proposed convention and his design for a banner—”the Banner of Peace” (reproduced with the Treaty in TS No. 899)—were in large part adopted by the parties to the convention. See Alexandrov, E., The Roerich Pact and the International Protection of Cultural Institutions and Treasures (Sofia 1978)Google Scholar.

16 1 U.S. Dep’t of State, Documents and State Papers 859 (1949).

17 See materials collected in Merryman, J. & Elsen, A., Law, Ethics and the Visual Arts 1–43 ff. (1979–)Google Scholar; Williams, S., The International and National Protection of Movable Cultural Property: A Comparative Study 23–29 (1978)Google Scholar.

18 In fact, the principle that individuals accused of (other kinds of) war crimes could be tried by the offended governments had been accepted long before. See Woetzel, R., The Nuremberg Trials in International Law 17 ff (1960)Google Scholar. In addition, there was recent relevant evidence that trials of accused war criminals by their own national courts were ineffectual. The Treaty of Versailles provided in Article 228 that Germans accused of war crimes would be tried by military tribunals of the victorious Allies. In pursuance of this provision, a list of 896 alleged war criminals, including highly placed officers, was submitted by the Allies with the demand that they be turned over for trial.

The German cabinet strenuously objected to the demand, citing the opposition of the German public. The Germans reported to the Allies that there would be an insurrection if they tried to deliver the names on the list, and army leaders said they would resume the war if the Allies pressed the matter.

Friedman, supra note 7, at 777. It was eventually agreed that the Germans would conduct the trials in their own high court, the Reichsgericht in Leipzig, applying international law. The Allies provided a drastically reduced list of 45 names, and the Germans agreed to try 12 of them. Six were eventually tried and convicted; they received light sentences, ranging from a few months to 4 years in prison. (Those who were eventually imprisoned immediately “escaped.”) For a contemporary account and evaluation of the trials, see Mullins, C., The Leipzig Trials (1921)Google Scholar.

19 Such echoes can be found in the language of the UNESCO Recommendation Concerning the International Exchange of Cultural Property of Nov. 26, 1976, UNESCO Doc. IV.B.8, though usually combined with insistence on the centrality of national interests. Thus, the Preamble states: “Recalling that cultural property constitutes a basic element of civilization and national culture,” and “Considering that a systematic policy of exchanges among cultural institutions . . . would . . . lead to a better use of the international community’s cultural heritage which is the sum of all the national heritages” (emphasis supplied). Article 2 of the recommendation contains a less nationalistic statement: “Bearing in mind that all cultural property forms part of the common heritage of mankind. . . . ”

20 For a discussion of the marbles and of preservation, integrity and distribution/access as the three main categories of international interest in cultural property, see Merryman, supra note 5, at 1916–21.

21 Two colleagues have suggested that one can distinguish cultural objects of merely local, national or regional interest from those of truly international importance. Hague 1954 specifically rejects any such distinction, as the quoted provision from the Preamble makes clear, equating “cultural property belonging to any people whatsoever” with “the cultural heritage of all mankind” because “each people makes its contribution to the culture of the world.” Still, it does not seem unreasonable to suppose that some objects really have little or no importance beyond local or national borders: the bronze effigy of an obscure politician executed by a mediocre artist of merely local reputation standing in a park in a provincial town in Brazil, as one example; the Liberty Bell, as another. Neither of these objects has intrinsic value, and the cultural importance of each seems to be entirely specific to the town in Brazil or to the United States, respectively. Would the rest of the world be culturally impoverished by the destruction of either? Arguably not, but there are two major difficulties: one is that the effort to distinguish objects of local from those of international significance enters a no–man’s–land that is shrouded in uncertainty and strewn with land mines. The Liberty Bell, for example, is a symbol of the American Revolution, a great event in Western history. Does it really ring only for Americans? The other problem is that what seems of local and minor interest now may unexpectedly assume major international importance. The minor politician may be reevaluated by scholarship, or the artist may have gone on to greater things, leaving only this bronze as an example of an important formative stage in his career.

22 Friedman, supra note 7, at 161; R. Hartigan, supra note 7, at 48.

23 Nahlik, , La Protection Internationale des biens culturels en cas de conflit armé, 120 Recueil des Cours 61, 87 (1967 I)Google Scholar.

24 Nahlik, id. at 128 ff , describes the debates and states that the United States, Great Britain and Turkey insisted on including an exception for military necessity, while the USSR, Romania, Greece, Belgium, Ecuador and Spain were among those that argued that such an exception was “incompatible avec l’esprit et les principes essentiels de la Convention.” It is ironic that the United States, which insisted on the military necessity exception and, with Great Britain, argued that without it “plusieurs pays ne se trouveraient plus en mesure de signer et de ratifier la Convention,” has not itself ratified Hague 1954. It is also significant that the earlier Roerich Pact, supra note 15, to which the United States was a party, contained no military necessity clause. The decisive vote on the Soviet motion to delete the military necessity clause was 20 opposed, 7 in favor and 14 abstentions. Id. at 131.

25 American Commission for the Protection and Salvage of Artistic and Historic Monuments in War Areas, Report 48 (1946) [hereinafter cited as REPORT]. The Report describes the work of the Commission, created in 1943, the field operations of the Monuments, Fine Arts, and Archives Section (MFA&A), and the treatment of cultural property during and after hostilities in World War II.

26 Dunbar, , Military Necessity in War Crimes Trials, 29 Brit. Y. B. Int’l L. 442 (1952)Google Scholar.

27 Today we are fighting in a country which has contributed a great deal to our cultural inheritance, a country rich in monuments which by their creation helped and now in their old age illustrate the growth of the civilization which is ours. We are bound to respect those monuments as far as war allows.

If we have to choose between destroying a famous building and sacrificing our own men, then our men’s lives count infinitely more and the buildings must go. But the choice is not always so clear-cut as that. In many cases the monuments can be spared without any detriment to operational needs. Nothing can stand against the argument of military necessity. That is an accepted principle. But the phrase “military necessity” is sometimes used where it would be more truthful to speak of military convenience or even of personal convenience. I do not want it to cloak slackness or indifference.

Report, supra note 25, at 48.

28 Shortly we will be fighting our way across the Continent of Europe in battles designed to preserve our civilization. Inevitably, in the path of our advance will be found historical monuments and cultural centers which symbolize to the world all that we are fighting to preserve.

It is the responsibility of every commander to protect and respect these symbols whenever possible.

In some circumstances the success of the military operation may be prejudiced in our reluctance to destroy these revered objects. Then, as at Cassino, where the enemy relied on our emotional attachments to shield his defense, the lives of our men are paramount. So, where military necessity dictates, commanders may order the required action even though it involves destruction to some honored site.

But there are many circumstances in which damage and destruction are not necessary and cannot be justified. In such cases, through the exercise of restraint and discipline, commanders will preserve centers and objects of historical and cultural significance.

Id. at 102.

29 Id. at 67.

30 Sir Harold, Nicolson, Marginal Comments, Spectator, Feb. 25, 1944 Google Scholar, reprinted in full in J. Merryman & A. Elsen, supra note 17, at 1–85, ff.

31 Not to mention enormous loss of noncombatant lives. See Irving, D., The Destruction of Dresden (1963)Google Scholar; cf. Vonnegut, K., Slaughterhouse-Five; or The Children’s Crusade (1969)Google Scholar.

32 See the discussion of the debate in Nahlik, supra note 23, at 128 ff.; and compare the views of Best, G., Humanity in Warfare passim (1980)Google Scholar, with those of Baker, J. & Crocker, H., The Laws of Land Warfare Concerning the Rights and Duties of Belligerents 149 ff, 209–13 (1919)Google Scholar.

33 Beginning with the Kellogg-Briand Pact of Aug. 27, 1928, 46 Stat. 2343, TS No. 796, 94 LNTS 57, and followed by the United Nations Charter, Article 2, paragraph 4, the illegality of aggressive war has been generally accepted among nations. One of the charges against the major war criminals at Nuremberg was that they initiated and waged wars of aggression. Charter of the International Military Tribunal, Art. 6, International Conference on Military Trials, U.S. Dep’t of State Pub. No. 380, 2 International Organization and Conference Series, 1 European and British Commonwealth 423 (1949).

34 Still, if military necessity can justify the denial or limitation of the constitutionally guaranteed rights of individuals, as it sometimes does in American constitutional law ( Levine, , The Doctrine of Military Necessity in the Federal Courts, 89 Mil. L. Rev. 3 (1980)Google Scholar), perhaps it is not surprising that we permit it to justify the destruction of cultural treasures.

35 There is growing international acceptance of a similar interest of “all mankind” in the physical environment, in space and in the seabed. Cf. UN Convention on the Law of the Sea, opened for signature Dec. 10, 1982, reprinted in United Nations, The Law of the Sea: United Nations Convention on the Law of the Sea (UN Pub. Sales No. E.83.V.5), which provides in the Preamble that “the area of the sea–bed and the ocean floor and the subsoil thereof . . . as well as its resources, are the common heritage of mankind,” and in Article 136 that the “Area and its resources are the common heritage of mankind.” Disagreement with the implications of this concept for access to and management of deep sea resources was a principal reason for the U.S. refusal, among others, to accede to the LOS Convention. Akehurst, M., A Modern Introduction to International Law 281–82 (5th ed. 1984)Google Scholar. For a discussion of the proposed application of the “common heritage” concept to Antarctica (also opposed by the United States), see Shapley, D., The Seventh Continent: Antarctica in a Resource Age 160 (1985)Google Scholar.

36 Hague 1954 also provides that the ordinary courts—i.e., the courts that ordinarily try criminal offenses—should be used, rather than military tribunals or special tribunals created for the purpose. One reason for the Germans’ resistance to the provision in the Treaty of Versailles that alleged German war criminals be tried by the Allies was that Allied military tribunals would try them.

37 “Supranationalism,” “meta-nationalism” or “cosmopolitanism” might, strictly speaking, be better than “internationalism,” since the idea is that humanity, independently of nations and international arrangements, is the party in interest. Use of “internationalism” in this sense, however, has become common enough and will do.

38 Report of the Delegates of the United States of America to the Seventh International Conference of American States, Montevideo, Uruguay, December 3–26, 1933, U.S. Dep’t of State Conference Series No. 19, at 208 (1934).

39 All three are set out in 1 U.S. Dep’t of State, Documents and State Papers 865 (1949).

40 1 UNESCO, The Protection of Movable Cultural Property: Compendium of Legislative Texts 382 (1984) [hereinafter cited as COMPENDIUM]. Later relevant materials include the Convention on the Protection of Archaeological, Historical, and Artistic Heritage of the Amercian Nations (Convention of San Salvador) of 1976, id. at 370; and the UNESCO Recommendation for the Protection of Movable Cultural Property of 1978, id. at 386. In 1985 the Council of Europe promulgated the European Convention on Offences Relating to Cultural Property, ETS No. 119, which adds penal to the more usual civil enforcement of national cultural property retention laws.

41 UNESCO 1970 imposes other obligations on the parties: to take steps to ensure the protection of their own cultural property by setting up appropriate agencies, enacting laws and regulations, listing works of major cultural importance, supervising excavations and through education and publicity (Arts. 5, 12 and 14). In general, however, these provisions are much less significant in the international discussion and activity under the Convention. The principal effort is to enlist the market nations to support the restrictions on export adopted by the source nations.

42 As this is written, France is reported to be taking the necessary steps to join UNESCO 1970, and the Federal Republic of Germany to be “actively investigating the notion.” Letter of Apr. 22, 1986 from Professor P. J. O’Keefe, University of Sydney, to the writer. Professor O’Keefe also reports that Denmark is introducing legislation pursuant to becoming a party, as is Australia.

43 This concern is more fully developed in League of Nations, Final Act of the International Conference on Excavations 1 ff. (1937); the UNESCO Recommendation Concerning the Preservation of Property Endangered by Public or Private Works of 1968, UNESCO Doc. CFS.68/vi.14x/AFSR; and the European Convention on the Protection of the Archaeological Heritage, May 6, 1969, ETS No. 66, Compendium, supra note 40, at 365.

44 Examples of international instruments that clearly do seek to impose obligations on nations to protect cultural property are: UNESCO Recommendation Concerning the Protection, at a National Level, of the Cultural and Natural Heritage of 1972, UNESCO Doc. 17/C/l 07 (Nov. 15, 1972); and UNESCO Convention for the Protection of the World Cultural and Natural Heritage of 1972, 27 UST 37, TIAS No. 8226, 1037 UNTS 151.

45 The United States ratified UNESCO 1970 in 1972 but reserved its obligations under the Convention until the enactment by Congress of implementing legislation. The result of a number of efforts and much negotiation, the Convention on Cultural Property Implementation Act Was enacted in 1983 as Pub. L. No. 97-446, 96 Stat. 2351 (codified at 19 U.S.C. §§2601–2613 (West Supp. 1986)).

46 The provisions of UNESCO 1970 were moderated by the participation of the United States in its drafting. Bator, , An Essay on the International Trade in Art, 34 Stan. L. Rev. 275, 370 (1982)Google Scholar, republished as The International Trade in Art 94 (1982). Their effects were further limited in the United States by reservations and understandings attached to U.S. ratification of the Convention in 1972. J. Merryman & A. Elsen, supra note 17, at 2-180 ff. The provisions of the Cultural Property Implementation Act, supra note 45, further limit the effects of UNESCO 1970 in the United States by requiring an independent U.S. investigation and determination of the gravity of the allegedly illicit traffic before action is taken under the Convention.

47 For a discussion of these resolutions and other components of the repatriation movement, see Nafziger, , The New International Framework for the Return, Restitution, or Forfeiture of Cultural Property, 15 N.Y.U.J. Int’l L. & Pol. 789 (1983)Google Scholar.

48 See id.

49 Eur. Parl. Ass., Texts Adopted by the Assembly, 35th Ordinary Sess., pt. 2 (Sept. 26–Oct. 6), Res. No. 808 (1983).

50 I will discuss the repatriation movement and the assumptions that underlie use of the term “repatriation” in more detail in another article.

51 The leading works include: P. O’Keefe & L. Prott, supra note 3; Niec, , Legislative Models of Protection of Cultural Property, 27 Hastings L. J. 1089 (1976)Google Scholar; Burnham, B., The Protection of Cultural Property (1974)Google Scholar; Meyer, K., The Plundered Past (1973)Google Scholar.

52 See Merry man, supra note 5.

53 According to newspaper reports, the Mexican Government now has the Codex and has refused to return it to Paris, claiming that it was stolen from Mexico in the 19th century. Riding, , Between France and Mexico, a Cultural Crisis, Int’l Herald Tribune, Aug. 31, 1982, at 1 Google Scholar; San, Francisco Chron., Aug. 19, 1982, at 41 Google Scholar.

54 Compare Peru Wages Campaign to Hall Trade in Stolen Treasures, N.Y. Times, Oct. 4, 1981, at 23; with Schumacher, , Peru’s Rich Antiquities Crumbling in Museums, N.Y. Times, Aug. 15, 1983, §C, at 14 Google Scholar, col. 1.

55 I will discuss the possible motivations for such hoarding in a separate article; cf. note 5 supra.

56 Consider the following language from the UNESCO Recommendation Concerning the International Exchange of Cultural Property, supra note 19:

Considering that many cultural institutions, whatever their financial resources, possess several identical or similar specimens of cultural objects of indisputable quality and origin which are amply documented, and that some of these items, which are of only minor or secondary importance for these institutions because of their plurality, would be welcomed as valuable accessions by institutions in other countries. . . .

Other provisions of this interesting UNESCO Recommendation urge nations to exchange cultural property with institutions in other nations and are clearly aimed at the hoarding tendency described in the text. As a recommendation, it imposes no legal obligation and, out of tune with the dominant retentive nationalism, has had no discernible impact on source nation practice.

57 An eminent colleague has suggested that the expression “cultural impoverishment of people in other parts of the world” is specious and/or excessive. Perhaps. On reflection, however, I think it is valid and, though dramatic, accurate. If the notion of a common human cultural heritage is taken seriously, and if access to the objects that compose it is necessary to its enjoyment, as many believe, then hoarding has the effect I describe.

58 See discussion in Bator, supra note 46, at 317 (“Ten easy lessons on how to create a black market”); Merryman with Elsen, , Hot Art: A Reexamination of the Illegal International Trade in Cultural Objects, J. Arts Mgmt. & L., No. 3, Fall 1982, at 5, 16 Google Scholar.

59 One need not approve of the traffic, or of some of the people who carry it on (avaricious dealers, corrupt police and customs officials, ethically insensitive collectors, cynically acquisitive museum professionals), to observe its existence and comment on its implications. Still, a blanket condemnation of those who participate in the traffic may be too easy: illegal excavations may reveal important works that would otherwise remain hidden; smuggling may save works that would otherwise be destroyed through covetous neglect; the laws prohibiting export may be senselessly overinclusive; etc.

Art dealers are commonly blamed not only for dealing knowingly in illegally obtained cultural objects but for encouraging, instigating, and even (it is sometimes alleged) planning and funding illegal excavations and smuggling. An aroused art historian has complained to me that by writing books on antiquities an important New York dealer has encouraged the demand for, and hence the illegal trade in, cultural objects. The role of dealers in the illegal traffic can be seen in contrasting ways. One view is that the dealer merely serves an already existing demand. The other blames the dealers for creating and nurturing the demand. Some combination of both effects undoubtedly exists, but it is difficult, if one looks at the history of the great private and public collections, to lay major blame for creation of the demand at the feet of dealers. Dealers bring the cultural artifact and the collector or museum together and undoubtedly encourage the demand for their own services and inventories. But the basic demand has its own existence, growing out of people’s interest in and curiosity about the human past, nurtured by education, scholarship, and the whole apparatus of museums and exhibitions. Dealers are an easy target, but they are not the source of the problem.

60 See the description of experiments with this strategy in Italy and Germany in J. Merryman & A. Elsen, supra note 17, at 2–112 ff:

61 The UNESCO Recommendation Concerning the International Exchange of Cultural Property of 1976, supra note 19, expresses a clear antimarket bias in its Preamble, stating:

[T]he international circulation of cultural property is still largely dependent on the activities of self-seeking parties and so tends to lead to speculation which causes the price of such property to rise, making it inaccessible to poorer countries and institutions while at the same time encouraging the spread of illicit trading.

The recommendation only supports exchanges between institutions, rejecting sales and any form of transaction with collectors and dealers. The market argument is obviously a controversial one and, in any case, needs much fuller discussion, which I will provide in another place.

62 The element of romance in cultural nationalism and the influence of Byron in creating and nurturing it are discussed in Merryman, supra note 5, at 1903–05.

63 To UNESCO’s credit, some efforts at a broader, less exclusively nationalistic approach have been made in some of its recommendations, previously cited in this article. See in particular the Recommendation Concerning the International Exchange of Cultural Property, supra note 19. That instrument’s formal status as a mere recommendation, however, combined with its antimarket bias, deprives it of any practical force.

64 For an exchange of correspondence setting out the official reasons for U.S. refusal to sign Hague 1954, see J. Merryman & A. Elsen, supra note 17, at 1–75–1–77.

65 See note 45 supra.

66 Treaty of Cooperation Providing for the Recovery and Return of Stolen Archaeological, Historical and Cultural Properties, July 17, 1970, United States–Mexico, 22 UST 494, TIAS No. 7088,791 UNTS313.

67 Agreement for the Recovery and Return of Stolen Archaeological, Historical and Cultural Properties, Sept. 15, 1981, United States–Peru, TIAS No. 10136.

68 Agreement for the Recovery and Return of Stolen Archaeological, Historical and Cultural Properties, May 21, 1984, United States–Guatemala (not yet published).

69 Pub. L. No. 92–587, 86 Stat. 1297 (1972) (codified at 19 U.S.C. §§2091–2095 (1982)).

70 See discussion of “The Boston Raphael” in J. Merryman & A. Elsen, supra note 17, at

71 Fitzpatrick, , A Wayward Course: The Lawless Customs Policy toward Cultural Property, 15 N.Y.U.J. Int’l L. & Pol. 857 (1983)Google Scholar. Proposed legislation that would limit Customs Service activities is at this writing before Congress but appears unlikely to pass.

72 United States v. McClain, 593 F.2d 658 (5th Cir. 1979); United States v. Hollinshead, 495 F.2d 1154 (9th Cir. 1974). Both cases were prosecutions under a U.S. statute punishing transportation of stolen property in interstate or foreign commerce. McClain had illegally removed pots and beads from Mexico; Hollinshead had illegally removed a stele from a Mayan site, Machiquila, in Guatemala. Both had brought the objects into the United States for sale. In both cases, the courts treated the removals in violation of the foreign laws as “thefts” under the U.S. statute and upheld the convictions.

73 Merryman, , International Art Law: From Cultural Nationalism to a Common Cultural Heritage, 15 N.Y.U.J. Int’l L. & Pol. 757 (1983)Google Scholar.

74 Freedom of export of cultural property from the United States was significantly limited for the first time in 1979 by §470ee of the Archaeological Resources Protection Act, Pub. L. No. 96–95, 93 Stat. 721, 724 (codified at 16 U.S.C. §470aa–470ll (1982)), which, however, applies only to objects illegally taken from “public lands and Indian lands”—i.e., to lands under federal ownership or protective jurisdiction.

75 For a brief explanation of the reasons for U.S. involvement in the project that culminated in UNESCO 1970, see Bator, supra note 46, at 370.

76 A recent example is Kunstsammlungen zu Weimar v. Elicofon, 678 F.2d 1150 (2d Cir. 1982) (two Dürer portraits stolen at the end of World War II ordered returned to East Germany). Such actions are of course subject to the normally applicable rules protecting good faith purchasers and to rules limiting the time within which actions to recover property may be brought. The International Institute for the Unification of Private Law in Rome is currently studying proposals that good faith purchasers of cultural property should receive less protection than is normally given them under the laws of most European nations. The proposals would bring the European rules closer in effect to those in the United States, which are generally less protective of bona fide purchasers and thus more protective of owners. There is a brief description of the Institute’s work on this topic in 1986 Revue Internationale de Droit Comparé 130–31.

As to limitation of actions, a bill entitled “The Cultural Property Repose Act” is at this writing before the United States Congress. If enacted, it would sharply reduce the period of the applicable statute of limitations in actions brought by foreign owners to recover stolen cultural objects. It appears unlikely to pass. A similar bill passed by the New York legislature was vetoed by the Governor on July 28, 1986. N.Y. Times, July 29, 1986, at 21.

77 Although, if the site is a neglected one and the removal saves works that would otherwise crumble away, a crude and undocumented job of removal might still be preferable from the cultural internationalist point of view.

78 A distinguished colleague has questioned the desirability of permitting such works to fall into the hands of collectors because they will not be available for public viewing and study, and the opportunity to monitor the quality of care they receive is limited. These are important considerations, but if the alternative is to leave them in a place where they are unavailable for viewing and study and receive no attention from qualified conservators, a collector may be preferable. Eventually, many works of museum quality in the hands of private collectors find their way to museums.

79 See Stewart, , Two Cheers for the Tombaroli, New Republic, Apr. 28, 1973, at 21 Google Scholar (“per piacere, Rubatelo!”); Luna, , The Protection of the Cultural Heritage: An Italian Perspective, in United Nations Social Defence Research Institute, The Protection of the Artistic and Archaeological Heritage 164 (1976)Google Scholar.

80 Jeanneret v. Vichy, 693 F.2d 259 (2d Cir. 1982).

81 See UNESCO, Cultural Rights As Human Rights, Studies and Documents on Cultural Policies No. 3 (1970).

82 See Merryman, supra note 5, at 1916–21.