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Repatriation of Cultural Property–Who Owns the Past? An Introduction to Approaches and to Selected Statutory Instruments

Published online by Cambridge University Press:  28 February 2019

Carol A. Roehrenbeck
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Should cultural property taken by a stronger power or nation remain with that country or should it be returned to the place where it was created? Since the 1990s this question has received growing attention from the press, the public and the international legal community. For example, prestigious institutions such as the J. Paul Getty Museum of Art in Los Angeles and the Metropolitan Museum of Art in New York have agreed to return looted or stolen artwork or antiquities. British smuggler Jonathan Tokeley-Parry was convicted and served three years in prison for his role in removing as many as 2,000 antiquities from Egypt. Getty director Marion True defended herself against charges that she knowingly bought antiquities that had been illegally excavated from Italy and Greece. New books on the issue of repatriation of art and antiquities have captured the attention of the public. A documentary based on one of these books was shown in theaters and aired on public television. The first international academic symposium on the topic was convened in New York City in January 1995.

Type
Articles
Information
International Journal of Legal Information , Volume 38 , Issue 2 , Summer 2010 , pp. 185 - 200
Copyright
Copyright © 2010 by the International Association of Law Libraries. 

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References

1 Konstantin Akinsha and Grigorii Kozlov, The Spoils of War: The Soviet Union's Hidden Art Treasures, 90 ARTnews 130–141 (1991) and Beautiful Loot: The Soviet Plunder of Europe's Art Treasures (1995) revealed the systematic looting of German sites by Soviet trophy brigades for the first time. For a detailed discussion of Russian stolen art see, Amelia Borrego Sargent, New Jurisdictional Tools for Displaced Cultural Property in Russia: From “Twice Saved” to “Twice Taken,” Yearbook of Cultural Property Law 2010, 167, 171 (Sherry Hutt ed., 2010); Lynn Nicholas, The Rape of Europa: The Fate of Europe's Treasures in the Third Reich and the Second World War (Vintage Books, 1994); Kenneth D. Alford, The Spoils of World War II: The American Military's Role in the Stealing of Europe's Treasures (1994). A number of restitution cases were also in the headlines. See, e.g., Turkey v. Metropolitan Museum of Art, 762 F. SuPp. 44 (S.D.N.Y. 1990)(Lydian artifacts from the 7th Century B.C. were returned to Turkey in 1993 after the Met admitted it had known the objects were stolen when they had purchased them).Google Scholar

2 In 2007 the Getty pledged to repatriate 40 artifacts to Italy and the Met returned 21 objects. Eti Bonn-Muller, A Tangled Journey Home, 60 Archaeology no. 5, Sept./Oct. 2007. In addition to these voluntary actions other repatriations resulted in protracted litigation. See Turkey v. Metropolitan Museum of Art, supra note 1.Google Scholar

3 Art and Cultural Heritage: Law, Policy and Practice 400 (Barbara T. Hoffman, ed., 2006).Google Scholar

4 Elisabetta Povoledo, Getty Ex-Curator Testifies in Rome Antiquities Trial, N.Y. Times, March 21, 2009, at C3.Google Scholar

5 See, e.g., James Cuno, Who Owns Antiquity: Museums and the Battle Over Our Ancient Heritage (2008); Sharon Waxman, Loot: The Battle Over the Stolen Treasures of the Ancient World (2008).Google Scholar

6 Nicholas, supra note 1.Google Scholar

7 In January, 1995, the first international academic symposium was convened in New York and the symposium papers were published in The Spoils of War: World War II and Its Aftermath - The Loss, Reappearance, and Recovery of Cultural Property (Elizabeth Simpson ed., 1997). A discussion of the first international academic symposium appears in John Henry Merryman et al., Law Ethics and the Visual Arts 22 (5th ed. 2007).Google Scholar

8 The Oxford English Dictionary, Vol. VIII 460 (1933).Google Scholar

9 Id. at 551.Google Scholar

10 John Henry Merryman, Two Ways of Thinking About Cultural Property, 80 Am. J. Int'l L. 831, 831 (1986).Google Scholar

11 For a list of post World War II treaties and conventions see, http://www.Savingantiquit-ies.org/heritagetreaties.php (last visited October 31, 2010).Google Scholar

12 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict, The Hague, May 14, 1954, 249 U.N.T.S. 215, Chap. I, Art. I:Google Scholar

For the purposes of the present Convention, the term “cultural property” shall cover, irrespective of origin or ownership:Google Scholar

  1. (a)

    (a) movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above;

  2. (b)

    (b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in subparagraph (a);

  3. (c)

    (c) centres containing a large amount of cultural property as defined in subparagraphs (a) and (b), to be known as “centres containing monuments.”

13 Leonard D. Duboff et al., Art Law: Cases and Materials 115 (Hein Pub., 2004).Google Scholar

14 United Nations Educational, Scientific and Cultural Organization [UNESCO], Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 Art. 1, Nov. 14, 1970, No. 11806, 823 U.N.T.S. 231 (May 9, 1972), available at http://portal.unesco.org/en/ev.phpURU_ID=13039&URL_DO=DO_TOPIC&-URL_SECTION=201.html.Google Scholar

15 International Institute for the Unification of Private Law (UNIDROIT), Convention on Stolen or Illegally Exported Cultural Objects, June 24, 1995, No. 43718, 34 I.L.M. 1322, (March 31, 2007). The items are detailed in the Annex as:Google Scholar

  1. (a)

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

  2. (b)

    (b) property relating to history, including the history of science and technology and military and social history, to the life of national leaders, thinkers, scientists and artists and to events of national importance;

  3. (c)

    (c) products of archaeological excavations (including regular and clandestine) or of archaeological discoveries;

  4. (d)

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

  5. (e)

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

  6. (f)

    (f) objects of ethnological interest;

  7. (g)

    (g) property of artistic interest, such as:

    1. (i)

      (i) pictures, paintings and drawings produced entirely by hand on any support and in any material (excluding industrial designs and manufactured articles decorated by hand);

    2. (ii)

      (ii) original works of statuary art and sculpture in any material;

    3. (iii)

      (iii) original engravings, prints and lithographs;

    4. (iv)

      (iv) original artistic assemblages and montages in any material;

  8. (h)

    (h) rare manuscripts and incunabula, old books, documents and publications of special interest (historical, artistic, scientific, literary, etc.) singly or in collections;

  9. (i)

    (i) postage, revenue and similar stamps, singly or in collections;

  10. (j)

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

  11. (k)

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

16 Council Regulation 3911/92, On the Export of Cultural Goods 1992 O. J. (L 395), 1, available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:039:00-01:0007:EN:PDF; Council Directive 97/7/EEC, On the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State 1993 O.J. (L 074), 74, available at http://europa.eu/legislation_summaries/culture/l11017b_en.htm.Google Scholar

17 For a full discussion on early wartime approaches see Margaret Miles, Art as Plunder: The Ancient Origins of Debate About Cultural Property (2008).Google Scholar

18 See, e.g., Nicole Klug, Note, Protecting Antiquities and Saving the Universal Museum: A Necessary Compromise Between the Conflicting Ideologies of Cultural Property, 42 Case W. Res. J. Int'l L. 711 (2010).Google Scholar

19 See Merryman, supra note 10.Google Scholar

20 Cuno, supra note 5; See also Merryman, supra note 10, at 831.Google Scholar

21 Raechel Anglin, Note, The World Heritage List: Bridging the Cultural Property Nationalism-Internationalism Divide, 20 Yale J.L. & Human 241, 242 (2008).Google Scholar

22 UNESCO, supra note 14.Google Scholar

23 Waxman, supra note 5, at 3.Google Scholar

24 Leonard D. DuBoff et al., Art Law: Cases and Materials 533 (Aspen Pub., 2nd ed. 2010). In the United States, however, the phrase is tied to political corruption and attributed to William L. Marcey. See Henry F. Woods, American Sayings: Famous Phrases, Slogans and Aphorisms 17 (1949).Google Scholar

25 DuBoff, supra note 24.Google Scholar

26 Miles, supra note 17. Miles discusses the philosophy of the Romans and highlights the speeches of Cicero that were written to prosecute Verres, governor of Sicily. These early speeches lay the ground work for later philosophies of restraint and repatriation. For example, Miles notes that Verres was guilty of numerous wrongdoings but one of particular interest to Cicero was his confiscation of art during his rule. Cicero's speeches set a tone praising legitimate military actions but condemning Verres’ illegitimate private thefts. Miles also shows how Cicero's speeches and anecdotes served to influence later generations in developing philosophies on plunder during war and repatriation. Miles points out that even ancient Romans believed in restrictions on plunder of some public art and all religious art after the defeat of the enemy. Id.Google Scholar

27 DuBoff, supra note 13, at 31.Google Scholar

28 Cultural looting was carried out for a variety of purposes. For a discussion see Patty Gerstenblith, Protecting Cultural Heritage in Armed Conflict: Looking Back, Looking Forward, 7 Cardozo Pub. L. Pol'y & EThics J. 677 (2009).Google Scholar

29 Margaret Miles, Cicero's Prosecution of Gaius Verres: A Roman View of the Ethics of Acquisition of Art, 11 Int'l J. of Cultural Property 28, 41 (2002).Google Scholar

30 Klug, supra note 18, at 723.Google Scholar

31 DuBoff, supra note 24, at 552.Google Scholar

32 Id.Google Scholar

33 Id. at 575.Google Scholar

34 Id. at 578–79.Google Scholar

35 Id. at 578.Google Scholar

36 Id.Google Scholar

37 Roberta Smith, Silent Survivors of Afghanistan's 4000 Years of Tumultuous Years, N. Y. Times, May 23, 2008, http://www.nytimes.com/2008/05/23/arts/design/23afgh.html?scp=1&-sq=+afghanistan+AND+looting+AND+museum+OR+art&st=nyt (last visited October 31, 2010).Google Scholar

38 Miles, supra note 17, at 286.Google Scholar

39 Gerstenblith, supra note 28, at 678–79.Google Scholar

40 DuBoff, supra note 13, at 44.Google Scholar

41 Miles, supra note 17, at 286.Google Scholar

42 Francis Lieber, available at http://www.icrc.org/ihl.nsf/73cb71d18dc43727412567390-03e6372/a25aa5871a04919bc12563cd002d65c5?OpenDocument (last visited Oct. 31, 2010).Google Scholar

43 Gerstenblith, supra note 28, at 681.Google Scholar

44 DuBoff, supra note 13, at 44.Google Scholar

45 Hague Convention (II) with Respect to the Laws and Customs of War on Land, The Hague, July 29, 1899, 32 Stat. 1803, available at http://www.icrc.org/ihl.nsf/FULL/150?OpenDocument.Google Scholar

46 DuBoff, supra note 13, at 45.Google Scholar

47 Hague Convention (IV) with Respect to the Laws and Customs of War on Land, The Hague, Oct. 18, 1907, 36 Stat. 2277 available at http://www.icrc.org/ihl.nsf/FULL/195.Google Scholar

48 Hague Convention, 1954, supra note 12, available at http://portal.unesco.org/en/ev.php-URL_ID=13637&URL_DO=DO_TOPIC&URL_SECTION=201.html.Google Scholar

49 Id. at art. 4, 11.Google Scholar

50 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, March 26, 1999, 38 I.L.M. 769; see Introduction, Int'l Committee of the Red Cross, Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict The Hague, 26 March 1999, available at http://www.icrc.org/ihl.nsf/INTRO/590 (last visited Oct. 31, 2010).Google Scholar

51 UNESCO, supra note 14.Google Scholar

52 UNIDROIT, supra note 15, available at http://www.unidroit.org/english/conventions/1995-culturalproperty/main.htm.Google Scholar

53 Council Regulation 3911/92, supra note 16.Google Scholar

54 Council Directive 93/7/EEC, supra note 16.Google Scholar

55 One AAMD guideline on the identification and restitution of Nazi-looted art is available at http://www.aamd.org/papers/documents/Nazi-lootedart_clean_06_2007.pdf (last visited October 31, 2010).Google Scholar

56 Restituted Works of Art – The Collection of Dr. Emil Freund, Jewish Museum in Prague, http://www.jewishmuseum.cz/en/aobrazy.htm (last visited October 31, 2010).Google Scholar

57 Dutch Hand Back Looted Iraqi Art, BBC News, July 9, 2009, http://news.bbc.co.uk/2/-hi/8143479.stm (last visited October 31, 2010).Google Scholar

58 Randy Kennedy, With the End of a Legal Dispute, a Schiele Comes to Manhattan, N. Y. Times, July 29, 2010, http://tinyurl.com/38w68yoWITHTHEENDOF_BRF.html?scp=1&sq=%22-portrait+of+wally%22+schiele&st=nyt (last visited October 31, 2010).Google Scholar

59 Sabrina Tavernise, Returned Artifacts Displayed in Kabul, N. Y. Times, Oct. 6, 2009, http://www.nytimes.com/2009/10/07/world/asia/07afghan.html?_r=2&ref=world (last visited October 31, 2010).Google Scholar

60 Patty Gerstenblith, International Cultural Property, 2010 Yearbook of Cultural Property Law 127, 128(Sherry Hutt ed.); http://portal.unesco.org/la/convention.asp?KO=130-39&language=E; http://www.cinoa.org/page/2298 (Last visited October 31, 2010).Google Scholar