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Lost to the Ages: International Patrimony and the
Problem Faced by Foreign States in Establishing
Ownership of Looted Antiquities
William R. Ognibene
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Lost to the Ages
INTERNATIONAL PATRIMONY AND THE PROBLEM
FACED BY FOREIGN STATES IN ESTABLISHING
OWNERSHIP OF LOOTED ANTIQUITIES
INTRODUCTION
On April 28, 2017, a nine-inch tall, five-thousand-year-
old marble statute known as the “Guennol Stargazer”
1
sold at
auction for $14.5 million dollars.
2
The auction itself, hosted at
Christie’s in New York, brought in a staggering $22.6 million
dollars in total sales of twenty-eight different rare antiquities.
3
Undoubtedly, antiquities are highly valuable and deeply
desirable. This conclusion may explain why, the day before the
sale of the Stargazer, the Republic of Turkey filed a claim
against Christie’s in an action to recover the Stargazer and
declare it the property of Turkey.
4
Turkey argued in pursuit of
replevin and conversion that the Stargazer “was looted from
Turkey [sometime] in the 1960s,” and that ownership is
predicated on a 1906 Ottoman Decree.
5
The 1906 Decree
provides Turkey (via the Ottoman Empire) ownership rights
over any “immovable and movable antiquities situated on land
and Estate belonging to the Government.”
6
1
The Guennol Stargazer—An Iconic Work of Art from the 3rd Mill enni um BC,
CHRISTIE’S (Apr. 5, 2017), http://www.christies.com/features/The-Guennol-Stargazer-
8195-3.aspx [https://perma.cc/V3AA-SN57].
2
Suzan Mazur, Klejman or Hecht?—Who Sold the Guennol Stargazer to
Tennis’s Alastair Martin?, HUFFINGTON POST (Sept. 19, 2017), https://www.huffington
post.com/entry/klejman-or-hecht-who-sold-the-guennol-stargazer-to_us_59c03f89e4b082fd
4205b935 [https://perma.cc/D5SY-ERSK].
3
The Exceptional Sale, CHRISTIE’S (Apr. 28, 2017), http://www.christies.com/
salelanding/index.aspx?intsaleid=26907&lid=1&saletitle= [https://perma.cc/42HZ-LW9Y].
4
Complaint for Declaratory Relief, Injunctive Relief, and Damages and
Demand for Jury Trial at 1, Republic of Turkey v. Christie’s, Inc., No. 17-cv-3086-AJN
(S.D.N.Y. Apr. 27, 2017), ECF No. 1 [here inafter Turkey Complaint].
5
Id. at 4–7. Replevin and conversion are common law doctrines that address
the return of stolen property. See discussion infra Section III.B.
6
Ergun Özsunay, Protection of Cultural Heritage in Turkish Private Law, 6
INT’L J. CULTURAL PROP. 278, 278 (1997).
606 BROOKLYN LAW REVIEW [Vol. 84:2
Christie’s disputes Turkey’s ownership claim through the
1906 Decree.
7
First, Christie’s argues that “no U.S. court has ever
found the 1906 Ottoman Decree to be valid.”
8
Second, Christie’s
contends that th e 1906 Decree has never been consistently
enforced either in or outside of Turkey.
9
No ruling has yet been
made on the 1906 Decree, although this is not the first time it has
appeared before the federal courts.
10
No American court, however,
has decided on the validity of the 1906 Decree.
11
Should the Turkey
v. Christie’s court agree with Christie’s, Turkey will have no
enforceable claim to the Stargazer in U.S. courts. The larger
ramifications of such a decision would cause difficulties for many,
if not all, of the foreign nations pursuing ownership claims to
cultural heritage through patrimony laws.
12
Turkey’s plight is not unique. Another auction house,
Sotheby’s, pulled an eighth-century statuette of a horse, on May 11,
2018—days before the horse was set to be auctioned for $150,000
to $250,000.
13
Sotheby’s pulled the artifact from the sale after
receiving a letter from the Greek government asserting that the
bronze horse was the property of Greece and demanding its
immediate return.
14
To support this claim, Greece presented
evidence that the present owners bought the statue in 1973 from a
7
Defendant Christie’s Inc.’s Memorandum of Law in Opposition to Republic of
Turkey’s Motion for a Preliminary Injunction at 1, Republic of Turkey v. Christie’s, Inc., No.
17-cv-3086 (S.D.N.Y. June 9, 2017), ECF No. 37 [hereinafter Christie’s Opposition Brief].
8
Id. at 18.
9
Id. at 18–20.
10
This is not the first time Turkey has attempted to predicate recovery of
antiquities on the 1906 Decree. In the 1980s—1990s, Turkey was embroiled in a suit
against the Metropolitan Museum of Art (the “Met”) in an attempt to recover a large
collection of antiquities known as the Lydian Hoard. See Republic of Turkey v. Metro.
Museum of Art, 762 F. Supp. 44, 45 (S.D.N.Y. 1990); Alessandro Chechi, Anne Laure
Bandle, & Marc-André Renold, Case Lydian Hoard—Turkey and Metropolitan Museum
of Art, PLATFORM ARTHEMIS, ART-LAW CENTRE, U. OF GENEVA, 3–5 (2012), https://plone.
unige.ch/art-adr/cases-affaires/lydian-hoard-2013-turkey-and-metropolitan-museum-of-
art [https://perma.cc/ WGL8-PHK9]. Li ke Turkey v. Christie’s, Turkey predicated its
ownership claim on “Turkish law.” Metro. Museum of Art, 762 F. Supp. at 45 . Whether
the ownership laws were valid, however, was an issue never addressed by the court, as
further evidence was uncovered in discovery indicating that the directors responsible for
purchasing the Lydian Hoard were aware of its illegal pro venance, and in order to avoid
further costs, the museum settled the case out of court without a ruling on the 1906
Decree’s validity. Chechi et a l., supra note 10, at 4–5.
11
See Christie’s Opposition Brief, supra note 7, at 17 (characterizing the 1906
Ottoman decree argument as “one of first impression in this country.”).
12
Patrimony laws, as referred to in this Note, are any laws of a sovereign
nation that establish protections for cultural heritage. Frequently, but not always,
patrimony laws include a decree establishing all cultural artifac ts within a country as
property of that country’s government. See discussion infra Part II.
13
Eileen Kinsella, Amid a Wave of Repatriation, Sotheby’s Stands Its Ground
Against Greece’s Claim to an 8th-Century Bronze Horse, ARTNET (J uly 2, 2018),
https:// news .artnet.com/ art-wo rld/s othebys-strikes-back-against-greekre patriation-
claim-1311500 [https://perma.cc/23PZ-LN4W].
14
Id.
2019] LOST TO THE AGES 607
dealer, who was eventually accused of trading in looted
antiquities.
15
Sotheby’s and the owners filed suit against Greece,
seeking a declaration that Greece has no valid ownership rights in
the horse and that th e present owners held it in good fa ith.
16
Looted antiquities and cultural property have been a
problem for culture-rich nations for centuries. Modern international
protections for these objects only truly began in 1954, with the
Convention for the Protection of Cultural Property in the Event of
Armed Conflict of May 14, 1954 (1954 Hague Convention).
17
In 1970,
the UNESCO Convention on the Means of Prohibiting and
Preventing the Illicit Import, Export and Transfer of Ownership of
Cultural Property (1970 UNESCO Convention) promulgated the
first generalized, unified doctrine for the protection of cultural
property.
18
UNESCO defines “cultural property” as “property which,
on religious or secular grounds, is specifically designated by each
State as being of importance for archaeology, prehistory, history,
literature, art or science and which belongs to [an enumerated]
categor[y].”
19
The Convention demands that all signatories create
rules facilitating the recovery of looted and stolen cultural property
from 1970 onward to prevent looting and to expedite restitution.
20
To accomplish these goals, the Conv ent ion governs the import and
export of cultural property and provides guidelines for state parties
to pr otect foreign and domestic antiquities.
21
Problems arise in implementing these guidelines. One of the
most debated articles of the Convention, Article 3, defines as “illicit”
the “import . . . of cultural prope rty effected contrary to the
provisions adopted under this Convention by the State Parties
thereto.”
22
State parties to the treaty, however, have wide leeway in
how they meet their obligations under the 1970 UNESCO
Convention. For example, the United States severely limits these
protections for the following reasons. First, the Un ited States, while
15
Id.
16
Complaint for Declaratory Judgment at 2, Barnet v. Ministry of Culture and
Sports of the Hellenic Republic, No. 18-cv-4963 (S.D.N.Y. June 5, 2018), ECF No. 1.
17
Final Act of the Intergovernmental Conference on the Protection of Cultural
Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 240 [hereinafter
1954 Hague Convention]; see discussion infra Section I.A.
18
See generally Convention on the Means of Prohibiting and Preventing the
Illicit Import, Export and Transfer of Ownership of Cultu ral Property, Nov. 14, 1970,
823 U.N.T.S. 231 [hereinafter 1970 UNESCO Convention].
19
Id. at 234.
20
Id. at 238.
21
Id.
22
Id. at 236; see also, e.g., Jane Warring, Comment, Underground Debates: The
Fundamental Differences of Opinion That Thwart UNESCO’s Progress in Fighting the
Illicit Trade in Cultural Property, 19 EMORY INT’L L. REV. 227, 253 (2005) (noting the
legal debate between civil and common law nations over Article 7(b)(ii)).
608 BROOKLYN LAW REVIEW [Vol. 84:2
a signatory, has codified only parts of the Convention.
23
Second, the
United States created a reservation prior to accepting the terms of
the Convention, clarifying that it “understands the provisions of the
convention to be neither self-executing nor retroactive.”
24
Because the 1970 UNESCO Convention is not retroactive,
antiquities looted prior to the 1970 signing of the Convention are not
protected, which forces any nation seeking recovery to fall back on
domestic patrimony laws (such as the 1906 Decree)
25
and common
law remedies provided by the states, such as replevin and
conversion. These claims require plaintiffs to prove a superior title
to the property and comply with a statute of limitations of three
years from the discovery or from a reasonable time frame the
plaintiff should have discovered the theft.
26
To ameliorate their stringent ownership requirements,
among other reasons, many nations have passed laws like the 1906
Decree to establish ownership over artifacts discovered on their
sovereign soil.
27
Indeed, the 1906 Decree has been updated twice
since the Ottoman Empire became the Republic of Turkey, most
recently in 1983.
28
But U.S. courts have no obligation to enforce
these laws, and plaintiffs like Turkey, seeking recovery in U.S.
courts, bear the burden of proving ownership.
29
These ambiguitie s
confound efforts to prove ownership of stolen art and antiquities,
particularly before 1970.
23
Notably, the United States has only one significant codification of the 1970
UNESCO Convention: The Convention on Cultural Property Implementation Act (CCP),
which implemented Articles 7 and 9 of the UNESCO Convention. Convention on
Cultural Property Implementation Act, Pub. L. No. 97-446, 96 Stat. 2350 (1983) (codified
as amended at 19 U.S.C. §§ 2601–2613 (2012)). The CCP is ineffective for countries like
Turkey because, among other issues, the CCP functions as an import law, and has no
effect on cultural artifacts already in the United States at the time of implementation.
See discussion infra Section III.A.
24
Declarations and Reservations: Convention on the Means of Prohibiting and
Preventing the Ill icit Import, Export and Transfer of Ownership of Cultural Property, UNITED
NATIONS EDUC., SCI. & CULTURAL ORG. (Nov. 14, 1970), http://portal.unesco.org/en/ev.php-
URL_ID=13039&URL_DO=DO_TOPIC&URL_SECTION=201.html #RESERVES [https://
perma.cc/KBJ2-AU27]. This reservation emphasizes what is already established
international custom of nonretroactivity per the Vienna Convention on the Law of Treaties.
Vienna Convention on the Law of Treaties art. 28, Jan. 27, 1980, 1155 U.N.T.S. 331, 339.
25
Plaintiff Republic of Turkey’s Memorandum of Law in Support of Plaintiff’s
Application for a Preliminary Injunction and Temporary Restraining Order at 6, No. 17-
cv-3086 (S.D.N.Y. June 9, 2017), ECF No. 6 [hereinafter Tur key’s TRO Brief] (arguing
ownership under 1906 Decree).
26
See infra Section III.C.
27
Mark J. Petr, Note, Trading Places: Illicit Antiquities, Foreign Cultural
Patrimony Laws, and the U.S. National Stolen Property Act After United States v.
Schultz, 28 HASTINGS INT’L & COMP. L. REV. 503, 505 (2005).
28
Özsunay, supra note 6, at 279–80.
29
77 C.J.S. Replevin § 79 (2018); Lawrence M. Kaye, Art Wars: The
Repatriation Battle, 31 N.Y.U. J. INT’L L. & POL. 79, 80 (1998).
2019] LOST TO THE AGES 609
As a result of the stringent domestic requirements set by
the United States and the weaknesses of international remedies,
recovering stolen antiquities from U.S. citizens becomes a
daunting challenge for even wealthy countries. Poorer nations
face ev en greater difficulties because often they cannot afford the
extensive discovery required to prove ownership and theft before
the statute of limitations expires.
30
Although there may be
resistance by some groups in the United States,
31
the current
domestic pathway towards restitution needs simplification. U.S.
policy should be more consistent with the obligations imposed by
the 1970 UNESCO Convention.
32
A specialized civil remedy for the restitution of looted
cultural property could simplify the process of restitution by
placing the burden on foreign states to protect their cultural
property on their own terms. Recognition of foreign laws is
consistent with the goals of international cultural heritage law
and would remove one hurdle on the path to recovery,
33
while
simultaneously protecting good faith purchasers from bad faith
claims and preserving ownership protections such as laches.
Part I of this note further explores the strengths and
weaknesses of restitution on an international scale. Part II
examines the competing interests of market nations and source
nations, and explains the role patrimony laws play in the
settlement of disputes ex-post, as well as the protection of
antiquities ex-ante. Part III reviews the current state of U.S. law
concerning the recovery of looted antiquities by foreign nations.
Part IV discusses a case from the United Kingdom that steps
toward broader recognition of patrimony laws. Finally, Part V
asserts that a more immediate solution to rightful restitution
requires U.S. courts to recognize foreign ownership claims and
synthesize the process of establishing ownership in both domestic
and foreign systems; a solution the United States should adopt to
better prot ec t the world’s cultural heritage.
30
See ALESSANDRO CHECHI, THE SETTLEMENT OF INTERNATIONAL CULTURAL
HERITAGE DISPUTES 119 (2014).
31
I refer here to those in the “art community,” suc h as dealers, collectors, and
museums, whose business relies on the free trade of art and antiquities. See Kaye, supra
note 29, at 79. The art community’s interests, however, are not without consideration,
and this note will attempt to propose a solution acceptable to all parties.
32
As of October 12, 2017, the United States has announced its intention to
withdraw from UNESCO by the end of 2018. Press Release, U.S. Dep’t of State, The
United States Withdraws from UNESCO (Oct. 12, 2017), https://www.state.gov/r/pa/prs/
ps/2017/10/274748.htm [https://perma.cc/T5ZV-R9ZM]. The United States will remain
engaged with UNESCO as a non-member observer. Id. Therefore, the obligations
imposed by that international convention are still relevant to the study of how the United
States should address the restitution of looted antiquities.
33
See supra Pa rt I.
610 BROOKLYN LAW REVIEW [Vol. 84:2
I. INTERNATIONAL PROTECTIONS FOR STOLEN ANTIQUITIES
Culture—and in turn cultural property—is increasingly
regarded “as a human centred, socially constructed legacy
belonging to all mankind.”
34
Vast networks of museums, gallerie s,
collectors, and academics dedicate themselves to the collection,
protection, and study of works of art and antiquities.
35
Moreover,
sales in the art and antiquities market offer valuable financial
incentives to the field of cultural heritage.
36
Whether for personal
reasons, nationalistic reasons, or internationalist reasons, people
care about cultural heritage.
37
Since cultural heritage is a global concern, several
international organizations have attempted to create protections for
antiquities, arts, and world heritage sites, as well as remedies for
individuals and states who have suffered theft of or damage to their
cultural prop erty. The term “cultural property” first appeared in an
“international legal context” in the 1954 Convention for the
Protection of Cultural Property in the Event of Armed Conflict (1954
Hague Convention).
38
By far the broadest and most well-known
international body associated with protecting cultural heritage is
the United Nations Educational, Scientific, and Cultural
Organization (UNESCO). UNESCO was established with the
signing of th e Constitution of UNESCO on November 16, 1945.
39
In
the years since, UNESCO has created two major initiatives to
address stolen cultural property: the 1970 UNESCO Convention,
40
and the Intergovernmental Committee for Promoting the Return of
Cultural Property to its Countries of Origin or its Restitution in Case
of Illicit Appropriation (ICPRCP).
41
34
CHECHI, supra note 30, at 10.
35
Id.
36
See, e.g., supra note 3 and accompanying text. One need only glance at the websites
of popular auction houses like Christie’s to see the huge sums spent on art and antiquities.
37
Cultural internationalists argue that cultural heritage belongs to humanity
as a whole, and therefore is best kept where it is best cared for and enjoyed by the most
people; whereas cultural nationalists believe cultural heritage belongs to the state and
people that created it. See John Henry Merryman, Two Ways of Thinking About Cultural
Property, 80 AM. J. INT’L L. 831, 852–53 (1986).
38
1954 Hague Con vention supra note 17; CHECHI, supra note 30, at 11.
39
United Nations Educ., Sci. & Cultural Org. (UNESCO), Constitution of the United
Nations Educational, Scientific and Cultural Organization (UNESCO), in BASICTEXTS 5 (2018),
http://unesdoc.unesco.org/images/0022/002269/226924e.pdf [https://perma.cc/QXX9-4V4E].
40
See 1970 UNESCO Convention, supra note 18, 823 U.N.T.S. at 231.
41
Statutes of The Intergovernmental Committee for Promoting the Return of
Cultural Property to its Countries of Origin or its Restitution in Case of Illicit
Appropriation, U.N. Doc. CLT/CH/INS-2005/21, (Oct. 2005).
2019] LOST TO THE AGES 611
A. Convention for the Protection of Cultural Property in the
Event of Armed Conflict of May 14, 1954
The 1954 Hague Convention was “the first [international]
convention to deal solely with the protection of cultural property.”
42
It focuses on protecting cultural property in times of war.
43
Indeed,
the 1954 Hague Convention took place in the shadow of the
devastating destruction of artifacts and cultural landmarks that had
occurred during World War II.
44
Accordingly, the 1954 Hague
Convention decrees how and when military operations are
permitted to damage or move these cultural relics.
45
The 1954 Hague
Convention protects the transport of cultural property out of
warzones,
46
and obligates warring states to return protected cultural
property to its original state upon cessation of hostilities.
47
In its preamble, the 1954 Hague Convention provides the
reason it undertakes the protection of cultural heritage: “Being
convinced that damage to cultural property belonging to any
people whatsoever means damage to the cultural heritage of all
mankind, since each people makes its contribution to the culture
of the world.”
48
John H. Merryman, one of the pioneers of art and
antiquities law,
49
suggests that this language supports a doctrine
of “cultural internationalism.”
50
Under the 1954 Hague
Convention, cultural property belongs to humanity as a whole,
rather than any one state.
51
Cultural internationalists argue that
antiquities should remain where they are best protected and
available for study and for the enjoyment of the public.
52
The 1954 Hague Convention contains no remedies apart
from established practice for the restitution of cultural property
not returned per its terms, nor does it address the issue of items
taken outside a conflict. Writing in 1986, however, Merryman
expressed his concern that the doctrine of cultural nationalism
underlying the 1970 UNESCO Convention is replacing the
42
Merryman, supra note 37, at 836.
43
Id. at 838.
44
Id. at 836–38.
45
Id. at 837–38.
46
1954 Hague Convention, supra note 17, 249 U.N.T.S. at 250–52.
Interestingly, the convention includes an exception to its protections of cultural property
in the case of “military necessity.” Id. at 244. For a discussion of military necessity, see
Merryman, supra note 37, at 838–40.
47
1954 Hague Convention, supra note 17, 249 U.N.T.S. at 285.
48
Id. at 240.
49
Sharon Driscoll, John Henry Merryman: Art Law Pioneer and Much-Loved
Colleague, STANFORD L. SCH. BLOG (Aug. 5, 2015), https://law.stanford.edu/press/john-henry-
merryman-art-law-pioneer-and-much-loved-colleague [https://perma.cc/5PNN-LYZ3].
50
Merryman, supra note 37, at 837.
51
Id. at 837.
52
Id. at 849.
612 BROOKLYN LAW REVIEW [Vol. 84:2
doctrine of cultural internationalism implied in the language of
the 1954 Hague Convention.
53
B. UNESCO Convention on the Means of Prohibiting and
Preventing the Illicit Import, Expor t and Transfer of
Ownership of Cultural Property
The 19 70 UNESCO Convention introduced guidelines
intended to protect cultural heritage and encourage state parties
to cooperate in the restitution of artwork and antiquities.
54
Its
protections are much broader than the 1954 Hague Convention
and suggests that the “true value [of cultural property] can be
appreciated only in relation to the fullest possible information
regarding its origin, history and traditional setting.”
55
In other
words, the 1970 UNESCO Convention is concerned that an object
loses considerable potential information—and therefore value—
when taken out of its historic al context to a foreign country.
56
The Convention operates to a large degree by imposing an
obligation on state parties to establish services, remedies, and
penalties for protecting cultural heritage.
57
The Convention,
however, does not impose a duty on parties to establish means to
ensure “the return of illegally removed antiquities.”
58
Article 7(b)(ii)
suggests guidelines for the restitution of works obtained illegally,
59
but this Article has been “criticized because the obligation to return
is conditional on the payment by the requesting State of ‘just
compensation’ to the innocent buyer or to any person who has valid
title to the object.”
60
Critics of the Convention complain that the “just
compensation” obligation forces victims of theft to “re-buy” the
property stolen from them, and stands as a significant obstacle to
restitution for poor nations.
61
These guidelines also circumvent
common law standards, in particular replevin, which does not award
defendants compensation for the return of property.
62
In effect, the Convention requires state parties to allocate
government resources to enforce the Convention but does not
provide details on its enforcement.
63
The Convention largely leaves
53
Id. at 845–49.
54
1970 UNESCO Convention, supra note 18, 823 U.N.T.S. at 234.
55
Id. at 232.
56
Merryman, supra note 37, at 843–44.
57
1970 UNESCO Convention, supra note 18, 823 U.N.T.S. at 242–44.
58
CHECHI, supra note 30, at 101–02.
59
1970 UNESCO Convention, supra note 18, 823 U.N.T.S. at 240.
60
CHECHI, supra note 30, at 102 (quoting 1970 UNESCO Convention, supra
note 18, 823 U.N.T.S. at 240).
61
Id.
62
Id.
63
See generally 1970 UNESCO Convention, supra note 18, 823 U.N.T.S. 231.
2019] LOST TO THE AGES 613
the enforcement proced ures to the discretion of state parties. These
limitations may be due to the reluctance of state parties to delegate
too much power to UNESCO.
64
Not only that, but ratifying the 1970
UNESCO Convention requires states to restrict the import and
export of art and antiquities from other state parties.
65
The
reluctance of some parties is exemplified by the United States’
legislation on UNESCO, which, as a result of haggling among
interested parties, required ten years to enact.
66
Because of these limitations, UNESCO has been largely
ineffective in resolving cultural heritage disputes and has instead
resolved to promote settlement through cooperation.
67
As an
alternative to the domestic requirements, UNESCO offers
mediation services to state parties.
68
Although this has
occasionally led to successful resolutions, the mediation service is
restricted to hearing claims between sovereign states,
69
and does
not apply retroactively to cultural property stolen before the 1970
UNESCO Convention.
70
The Convention’s failure to address retroactivity left
states with no claims if their cultural property was taken by
colonizers or illicitly taken prior to 1970.
71
In order to respond to
these concerns, the Intergovernmental Committee for Promoting
the Return of Cultural Property to its Countries of Origin or its
Restitution in Case of Illicit Appropriation (ICPRCP) was created
in 1978 to fill the gap created by the 1970 UNESCO Convention.
72
The Committee assists UNESCO Member States to resolve
requests to repatriate cultural heritage “lost as a result of colonial
or foreign occupation or as a result of illicit appropriation.”
73
This
64
Andrew Guzman, International Organizations and the Frankenstein
Problem, 24 EUR. J. INT’L L. 999, 1000 (2013) (“[States] are overly conservative when
they create [international organizations] and have failed to take full advantage of IOs to
achieve important cooperative gains. They are too scared of the monster.”).
65
1970 UNESCO Convention, supra note 18, 823 U.N.T.S. 236–44 .
66
Convention on Cultural Property Implementation Act, Pub. L. No. 97-446,
96 Stat. 2350 (1983) (codified as amended at 19 U.S.C. §§ 2601–2613 (2012)); Merryman,
supra note 37, at 845.
67
CHECHI, supra note 30, at 39.
68
UNESCO Res. 33, U.N. Doc. C/46 (B), at 3 (Aug. 25, 2005).
69
UNESCO Rules of Procedure for Mediation and Conciliation 16/7 U.N. Doc.
CLT-2010/CONF.203, at 2 (Oct. 2010).
70
See Vienna Convention on the Law of Treaties, supra note 24, 1155 U.N.T.S.
at 339.
71
See Historical Background on the Intergovernmental Committee, U.N.
EDUC., SCI. & CULTURAL ORG. (UNESCO), http://www.unesco.org/new/en/culture/
themes/restitution-o f-cultural-property/intergovernmental-commi ttee/hist orical-back
ground/ [h ttps://perma.cc/8GGV-FAQ7].
72
UNESCO Gen. Conf. Res. 20 C4/7.6/5 (Nov. 28, 1978); see also Historical
Background on the Intergovernmental Committee, supra note 71.
73
Statutes of The Intergovernmental Committee for Promoting the Return of
Cultural Property to its Countries of Origin or its Restitution in Case of Illicit
Appropriation, U.N. Doc. CLT/CH/INS-2005/21, at art. 3 (Oct. 2005).
614 BROOKLYN LAW REVIEW [Vol. 84:2
language allows the ICPRCP to hear claims arising out of
requests for repatriation by states, regardless of the temporality
of the theft. Like UNESCO, however, the state parties limit the
ICPRCP’s powers.
74
Therefore, it is confined to promoting
cooperation in dispute settlements, rather than conflict through
litigation. Further, to see cases, the ICPRCP must be a last resort;
states must have already attempted and subsequently failed to
resolve the issue through domestic bilateral negotiations.
75
As a
consequence of these limitations, the ICPRCP has been utilized
in only eight cases since its inception in 1978.
76
C. Weaknesses of International Dispute Resolution
International dispute resolution suffers from more than the
weaknesses of individual organizations and treaties.
77
The
aforementioned organizations, among others, offer their services as
arbitrators in cultural heritage disputes, which sometimes take the
form of extralegal arbitration and in other instances litigation in
international courts.
78
The flaws of the int ernational system,
however, significantly weaken any international solution and, as a
result, make arbitration and international litigation problematic.
International tribunals addr essing cultur al heritage
disputes claim to offer objective adjudication of international
problems,
79
and can do so, much like domestic courts, by applying
“well-establish ed rules, available well-reasoned opinions, and
streamlined procedures.”
80
Nonetheless, international tribunals
are only available in state-to-stat e disputes, and are therefore
unavailable to other claimants, such as individual actors.
81
Moreover, even in state-to-state disputes, tribunals are sensitive to
issues of state sovereignty. In addition, all states must expressly
consent to arbitration proceedings befor e international tribunals.
82
74
See CHECHI, supra note 30, at 102.
75
Id. at 103.
76
Id. “The most debated case is still pending: . . . the repatriation of the
Parthenon Marbles from the British Museum” in the United Kingdom to Greece. Id.; see
also IBNA Newsroom, UNESCO’s ICPRCP Examines St atus of Parthenon Sculptures, in
Paris, INDEP. BALKAN NEWS AGENCY (June 1, 2018), https://www.balkaneu.com/unescos-
icprcp-examines-status-of-parthenon-sculp tu res- in-paris/ [https://perma.cc/ ZL 5C -5L W4].
77
See discussion supra Sections I.A., I.B.
78
See discussion supra Sections I.A., I.B.
79
The International Court of Justice has dealt with two cultural heritage
disputes. CHECHI, supra note 30, at 147–48. Other international tribunals rarely concern
themselves with interstate cultural heritage disputes, but have considered the protection
of cultural property. Id. at 146–66.
80
Id. at 166.
81
Id.
82
Id.
2019] LOST TO THE AGES 615
Accordingly, without consent, internat ional tribunals cannot
arbitrate state-to- state disputes.
Even with consent, international organizations “lack
enforcement mechanisms.”
83
International courts rely on national
judges and legal systems to enforce their decisions; thus, if domestic
courts dislike the outcome of a case, they may refuse to enforce it.
84
Finally, international courts typically operate within specialized
legal regimes with important individual goals that are not always
consistent with the goals of cultural heritage restitution.
85
These
disparities give claimants a choic e not only betw een domestic legal
systems and international systems, but also require a choice of
which int erna tional tribunal to call upon for resolution.
The international system as a whole suffers from concerns
of consent, enforcem ent, and bias.
86
Accordingly, any proposal for a
new international body faces a difficult hurdle. The states likely to
be involved in disputes must agree to its formation.
87
Rather than
contend with these concerns, states like Turkey, which are wealthy
enough to afford litigation, have opted instead to pursue remedies
in domestic courts.
88
II. PATRIMONY: “SOURCE” NATIONS VERSUS “MARKET”
NATIONS
Unfortunately, due to the flaws in the international
system,
89
organizations such as UNESCO and the ICPRCP can
pursue their goals only by relying on member states.
90
Fortunately,
many states do have their own systems of restitution. Some of
these align perfectly with international treaties while others are
stricter and more independent. Often, the difference depends on
whether a state is a “source” nation or a “market” nation. Source
83
Id.
84
See, e.g., Medellin v. Texas, 552 U.S. 491, 498 (2008) (holding that a decision
by the International Court of Justice does not constitute binding federal la w that pre-
empts state law).
85
See CHECHI, supra note 30, at 167.
86
See JAMES CRAWFORD, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL
LAW 478–83 (8th ed. 2012).
87
For example, Inte rnational Cultural Property Trusts (ICPT) were proposed
in 2007 by Marion Forsyth. An ICPT would be an international body that declares itself
the owner of all pieces of cultural heritage and antiquities, and then fairly delegates
what antiquities go to which nation. See Marion P. Forsyth, International Cultural
Property Trusts: One Response to Burden of Proof Challenges in Stolen Antiquities
Litigation, 8 CHI. J. INT’L L. 197, 204–06 (2007). Such a proposal requires the cooperation
of many countri es, who must strike a careful balance between surrendering authority
and granting power. Guzman, supra note 64, at 10 00.
88
See supra notes 4–10 and accompanying text.
89
See supra Section I.C.
90
See supra notes 63–66 and accompanying text.
616 BROOKLYN LAW REVIEW [Vol. 84:2
nations are states which have a deep cultural history and thereby
produce a supply of artifacts.
91
Market nations are those states that
collect the cultural heritage of others for personal, commercial, or
academic use.
92
Market nations include “France, Germany, Japan, the
Scandinavian nations, Switzerland and the United States.”
93
The
United States and the United Kingdom boast large art markets
operated by auction houses, museums, and networks of collectors
and dealers.
94
States with vast, vibrant art markets regard “free
trade as the only means for the flourishing of the exchange of
artworks and of an international market.”
95
Accordingly, market
nations oppose strict restitution laws in order to protect their art
dealers, collectors, and auctioneers, and to encourage the growth of
their art markets.
96
Source nations favor restitution of cultural property and
oppose its export.
97
These include states such as “Mexico, Egypt,
Greece and India,” which “are rich in cultural artifacts” that have
long since been uncovered and spread throughout the world.
98
The
state parties of the 1970 UNESCO Convention are overwhelmingly
source nations which enj oy the increased protection of their cultural
heritage.
99
These and other source nations employ export and
patrimony laws in order to ensure the retention and repatriation of
artifacts and antiquities.
100
Patrimony and export laws are the shields by which states
protect their own cultural heritage.
101
The difference between the
two is simple, yet highly controversial in restitut ion cases.
102
Export laws vest no ownership right in cultural property, but
instead prohibit certain objects of cultural heritage from crossing
state borders.
103
Patrimony laws, on the other hand, vest ownership
of certain objects under certain conditions in the government of the
home state, thereby claiming such objects as part of the nation’s
91
Merryman, supra note 37, at 832.
92
Id.
93
Id.
94
See Artsy Editors, The 15 Most Influential Art World Cities of 2015, ARTSY
(Dec. 15, 2015, 11:13 PM), https://www.artsy.net/article/artsy-editorial-contemporary-
art-s-most-influential-cities [https://perma.cc/TP8S-E2D6].
95
CHECHI, supra note 30, at 40.
96
Id.
97
Merryman, supra note 37, at 832; CHECHI, supra note 30, at 40.
98
Merryman, supra note 37, at 832.
99
See id. at 843.
100
See John Henry Merryman, “Protection” of the Cultural “Heritage”?, 38 AM.
J. COMP. L. 513, 521 (1990).
101
See CHECHI, supra note 30, at 139.
102
See, e.g., Christie’s Opposition Brief, supra note 7, at 19 (“This testimony makes
the 1906 decree appear to have no more effect than an export law, in operation if not in its text.”).
103
See CHECHI, supra note 30, at 66.
2019] LOST TO THE AGES 617
cultural heritage.
104
Both laws intend to deter the illegal excavation
and removal of antiquities located within a national territory.
105
Consequently, they also seek to recover previously loot ed materi al
“from su bseque nt purchasers and to punis h the [thieves].”
106
Foreign courts often do not enforce domestic export laws
that prohibit transfer of cultural property over state lines.
107
U.S.
courts have had difficulty distinguishing export laws from
patrimony laws. In fact, “[t]he formal distinction between
patrimony laws and export regulations is critical because only the
former category enjoys extraterritorial effect.”
108
Furthermore, the
enforcement of patrimony laws is not a be-all-end-all solution to the
restitution of cultural heritage. The universal and retroactive
recognition of foreign patrimony laws, while potentially valuable,
can be used as a sword by source nations “to acquire new objects
into the national patrimony rather than protect existing but
undiscover ed objects within the territory.”
109
Additionally, U.S. courts have long recognized foreign
patrimony laws, but only subject to the rights of good faith
purchasers.
110
The current leading case guiding U.S. interpretat ion
of foreign patrimony laws is United States v. McClain.
111
The
resulting McClain doctrine is used to establish valid of ownership
of cultural property.
112
In order to prove that an object was stolen
under the McClain doctrine, a foreign country must pr ove that:
(1) the object was discovered within its current borders; (2) the
pertinent legislation unequivocally vests ownership of such object in
the State, even without physical possession, and that it was in force
when the object was removed from that country; and (3) the foreign
law does not violate the US conception of due process.
113
As evinced by the McClain doctrine, foreign states must carefully
construct their patrimony laws if they expect to recover stolen
104
National Ownership Laws Defined, 1 ART, ARTIFACT, ARCHITECTURE, &
MUSEUM LAW § 6122 (2017).
105
CHECHI, supra note 30, at 66.
106
Id.
107
Id. at 92. This, despite the fact that the UNESCO convention “obliges the
States Parties, consistent with the laws of each State, ‘to recognize the indefeasible right
of each State Party to this Convention to classify and declare certain cultural property as
inalienable.’” Id. (quoting 1970 UNESCO Convention, supra note 18, 823 U.N.T.S. at 244).
108
Id. at 67.
109
Luis Li & Amelia L.B. Sargent, The Getty Bronze and the Limits of
Restitution, 20 CHAP. L. REV. 25, 44, 50 (2017).
110
Cf. Kaye, supra note 29, at 80–81.
111
United States v. McClain, 545 F.2d 988, 1000–02 (5th Cir. 1977). McClain
was an appeal from a conviction under the National Stolen Property Act for the theft of
Mexican antiquities. Id. at 991–92.
112
CHECHI, supra note 30, at 69.
113
CHECHI, supra note 30, at 69 (citing McClain, 545 F.2d at 1001–02).
618 BROOKLYN LAW REVIEW [Vol. 84:2
objects.
114
In Government of Peru v. Johnson, the Central District
of California found that Peru’s ownership laws were unenforceable
because they were not consistently followed and were therefore
ambiguous.
115
If courts find ownership laws invalid based on
“ambiguity,” then how can anyone find them valid? The real issue
should not be “does this country own this,” but “was it stolen?”
Proving ownership is an unnecessary hurdle when the main
burden should be prov ing that the object was or was not stolen.
III. CURRENT DOMESTIC PROTECTIONS FOR LOOTED
ANTIQUITIES
In United States courts, a foreign country must prove
ownership of an allegedly stolen object through patrimony laws in
order to succeed in a civil claim of replevin or convers ion.
116
Civil
claims, however, are not the only methods by which foreign states
can recover stolen cultural propert y. As a signatory of the 1970
UNESCO Convention, the United States must cooperate with other
state parties in the protection and restitution of cultural property.
117
These obligations are complicated because the United
States is the second largest art market in the world.
118
Accordingly,
the United States and other market nations usually oppose strict
restitution laws in order to protect the nation’s art dealers,
collectors, and auctioneers.
119
Since UNESCO merely provides
guidelines to its member states,
120
few of the Convention’ s articles
have been codified in U.S. law.
121
Several reasons limit UNESCO’s
influence in the United States. These include: inadequate federal
legislat ion governing the protection of foreign cultural property,
the failure of federal courts to cons istently validate for eign
patrimony laws, and the common law protect ions for good faith
purchasers such as statutes of limitation.
These legal reasons explain why the United States provides
little help for restitution of stolen cultural property. The five pieces
114
See id.
115
Gov’t of Peru v. Johnson, 720 F. Supp. 810, 812–15 (C.D. Cal. 1989), aff’d
sub nom. Gov’t of Peru v. Wendt, No. 90-55521, 1991 WL 80599 (9th Cir. May 15, 1991).
Christie’s made this argument in its brief in opposition to Turkey’s motion for a
preliminary injunction. Christie’s Opposition Brief, supra note 7, at 19–20.
116
See discussion infra Section III.B.
117
See 1970 UNESCO Convention, supra note 18, 823 U.N.T.S. at 242; see also
discussion supra Section I.B.
118
2017 Summary—The Art Market Enters a New Phase, A RTPRICE (Mar. 2018),
https://www.artprice.com/artprice-reports/the-art-market-in-2017/2017-summary- th e-art-
market-enters-a-new-phase/ [https://perma.cc/TF66-NPDZ].
119
See CHECHI, supra note 30, at 40.
120
See discussion supra Section I.B.
121
CHECHI, supra note 30, at 70–71.
2019] LOST TO THE AGES 619
of legislation addressed below, along with various common law
remedies, constitute the help U.S. law provides; however, there is
presently no statutory civil remedy available to foreign states. Thus,
nations such as Turkey remain with the common law remedies that
have developed broadly to solve disp utes regarding stolen property.
These remedies are inadequate because they do not address the
specialized interests pertinent to international cultural heritage.
A. Federal Law
The National Stolen Property Act (NSPA) of 1934 stands as
the earliest federal legislation that addresses restitution of stolen
art.
122
The NSPA provides for possible criminal “prosecution of
those involved in the importing, exporting, buying or selling of
cultural artifacts that have been illegally obtained.”
123
It does so by
recognizing foreign nation’s patrimony laws, but is only enforceable
where the law vests ownership of the artifacts in the country’s
government and not in individual citizens.
124
As a criminal st at ute,
the NSPA also requires a mens rea finding that the possessor
maintained control of the illegal property “knowing the same to
have been stolen, unlawfully converted, or taken.”
125
The NSPA has led to only three successful convictions.
126
In
one case, United States v. Schultz,
127
“the Court interpreted the
relevant Egyptian Law of 1983 as an ownership law and concluded
that the NSPA applied to objects stolen in violation of foreign
patrimony laws.”
128
Schultz and the NSPA are therefore notable for
opening the door to the judicial recognition of foreign patrimony
laws independent of explic it federal recogn ition of those laws.
129
This law would be effective for a nation like Turkey if it
could prove the “Stargazer—an iconic work of art from the [third]
millennium BC”—was stolen.
130
Even to this day, however, the art
world is filled with secrets, handshake transactions, and
backroom deals, and therefore evidence of theft is lacking.
131
Furthermore, as a criminal statute—as opposed to a civil
122
National Stolen Property Act, ch. 333, 48 Stat. 794 (1934) (codified as
amended at 18 U.S.C. §§ 2314, 2315 (2012 & Supp. I 2013)).
123
Petr, supra note 27, at 505.
124
Id.
125
18 U.S.C. § 2315 (2012 & Supp. I 2013).
126
Petr, supra note 27, at 506.
127
United States v. Schultz, 178 F. Supp. 2d 445 (S.D.N.Y. 2002), aff’d 333 F.3d
393 (2d Cir. 2003).
128
CHECHI, supra note 30, at 71.
129
Id.
130
See supra note 1 and accompanying text.
131
Lisa J. Borodkin, Note, The Economics of Antiquities Looting and a Proposed
Legal Alternative, 95 COLUM. L. REV. 377, 385–87 (1995).
620 BROOKLYN LAW REVIEW [Vol. 84:2
remedy—the NSPA presents little opportunity for foreign nations
to bring their claims to the United States on their own terms. In
sum, the NSPA offers little aid to foreign nations whose stolen
property has long since left the hands of thieves and entered the
possession of good faith purchasers. Nonetheless, successful
prosecutions such as Schultz offer evidence that courts should
recognize foreign patrimony laws.
More narrowly, the Regulation of Importation of Pre-
Columbian Monumental or Archit ectural Sculpture or Murals
prohibits the importation of “pre-Columbian monumental or
architectural sculpture[s] or mural[s].”
132
More specifically, the
statute requires any pre-Columbian artifact entering the United
States to bear an export certificate from the country of origin, which
includes a provision for the expenses of the artifact’s return.
133
The limited scope of this law means that it affects only
cultural property that originated in the Americas, and only where
North and South American nations have already enacted export
laws. An expansion of this law could provide a blanket import
restriction that respects any and all foreign nations export laws.
However, such an act would be far too broad to be practical, and
would do nothing to assist in the restitution of property that has
already entered the United States.
The United States protects its own cultural property
through the Archaeological Resources Protection Act (ARPA).
ARPA is a criminal statute prohibiting the excavation and
removal of archaeological resources on Federal and Indian lands
that are at least one-hundred-years-old.
134
To that end, the law is
close to—but not exactly—a U.S. patrimony law. ARPA does not
vest ownership of the country’s archaeological resources in the
United States by default, but merely criminalizes the
unauthorized removal of them.
135
In fact, ARPA allows any person
to apply for a permit to legally excavate federal or Indian lands,
provided that “the applicant is qualified,” the activity “is not
inconsistent with any other management plan” for that land, and
“the activity is undertaken for the purpose of furthering
archaeological knowledge in the public interest.”
136
132
Act of Oct. 27, 1972, Pub. L. N o . 92-587, Title II, 86 Stat. 1297–98 (codified
as amended at 19 U.S.C. §§ 2091–2095 (2012)).
133
19 U.S.C. § 2092 (2012).
134
Archaeological Resources Protection Act of 1979, Pub. L. No. 96-95, 93 Stat.
721 (codified as amended at 16 U.S.C. §§ 470aa-470mm (2012 & Supp. II 2014)). On the
other hand, des pite the plain language purpose of ARPA in protecting the cultural
resources of the United States, the law has been applied several times to stolen cultural
property of foreign nations. CHECHI, supra note 30, at 71.
135
Id.
136
16 U.S.C. § 470cc (2012 & Supp. II 2014).
2019] LOST TO THE AGES 621
Interestingly, anything excavated under an ARPA permit
must “remain the property of the United States.”
137
Thus, despite
the fact that it is not a patrimony law, ARPA does vest the United
States with ownership in legally removed resources from federal
lands, and can be used to repatriate antiquities to the United
States from foreign nations.
138
Enforcement of ARPA shows the
United States’ interest in protecting its own antiquities, evidence
of the United States unique position as both an important market
nation and source nation.
139
The Convention on Cultural Property Implementation
Act (CCPIA) was passed in 1983 as a direct implementation of
the 1970 UNESCO Convention.
140
Its primary purpose is “to
exercise import controls over cultural property” and help other
parties to the 1970 UNESCO convention recover their cultural
property.
141
Accordingly, the CCPIA is an import law, not a
criminal or civil remedy, and is administered by U.S. customs
agencies only in very limited circumstances. In fact, the process
by which an import ban is implemented is fairly tedious. First,
a foreign state must request restrictions on the import of its
“archaeological or ethnological material.”
142
Then, the Cultural
Property Advisory Committee, a branch of the U.S. Department
of State, must consider several factors regarding the property’s
qualifications as “cultural property” before making a
recommendation to the State Department.
143
If the State
Department approves, then it implements a bilateral agreement
with the requesting nation to prohibit the importation of any
goods that have been illegally exported.
144
Once a ban is in place, U.S. customs agents inspect and flag
any cultural property from the foreign nation for seizure and
forfeiture.
145
The possessor then must prove valid ownership of the
property. “If the possessor loses [their] case, the Government will
137
Id.
138
See, e.g., Maddy Hayden, Mule Creek Man Says He Inherited Native Shield,
ALBUQUERQUE J. (Jan. 27, 2019, 12:05AM), https://www.abqjournal.com/1273393/mule-
creek-man-says-he-inherited-native-shield.html [https://perma.cc/6KWF-KR22].
139
Merryman, supra note 37, at 832 n.4 (“[T]here 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.”).
140
Convention on Cultural Property Implementation Act, Pub. L. No. 97-446,
96 Stat. 2350 (1983) (codified as amended at 19 U.S.C. §§ 2601–2613 (2012)); CHECHI,
supra note 30, at 71.
141
CHECHI, supra note 30, at 71–72.
142
19 U.S.C. § 26 02 (2012).
143
Id. §§ 2602, 2605.
144
Id. § 26 02.
145
Id. § 2613.
622 BROOKLYN LAW REVIEW [Vol. 84:2
return the property to [its] country of origin,” provided that the
country pays the expenses associated with the property’s return.
146
Despite its drawbacks, the CCPIA is currently the United
States’ most effective tool for coop erating with foreign states in the
prevention and restitution of stolen art and antiquities. Like the
NSPA and th e Regulation of Importation of Pre-C olumbian
Monumental or Architectural Sculpture or Murals, the CCPIA
provides little (if any) support to foreign nations seeking the
recovery of stolen cultural property that entered the United States
before its implementation.
While not entirely related to the recovery of looted
antiquities, an examination of the government’s treatment of art
stolen by the Nazis influences the government’s point-of-view on
stolen art. It serves as a catalyst for resolving a broader area of
culture property disputes as “it is in the context of the Holocaust-
related disputes that innovative solutions on how to develop
appropriate norms and processes to resolve clashes of interests
have been discussed.”
147
Innovative solutions are necessary to
address the conflicting factors in the Holocaust-relat ed cases.
These include the human rights violations committed by th e Nazis
in misappropri ating these works, the personal emotions with
which plaintiffs approach their claims, and the good faith by which
many of the possessors of the works acquired them.
148
The Holocaust Expropriat ed Art Recovery Act of 2016
(HEARA) was signed in December 2016, and allows civil claims or
causes of action for the recovery of artwork or certain other
property lost between January 1, 1933, and December 31, 1945,
because of Nazi persecution to be commenced within six years after
the claimant’s actual discovery of: “(1) the identity and location of
the artwork or other property; and (2) a possessory interest of the
claimant in the artwork or other property.”
149
HEARA “temporarily
replaces [the various] state statutes of limitations” for restitution
in the United States “with a uniform national six-year statute of
limitations,” granting potential claimants a longer period to
146
CHECHI, supra note 30, at 72.
147
Id. at 135.
148
See e.g., Altmann v. Republic of Austria, 142 F. Supp.2d 1187, 1192–96
(2001) (outlining the complex history behind a family’s stolen Klimt ar tworks).; see also
Jennifer Anglim Kreder, Reconciling Individual and Group Justice with the Need for
Repose in Nazi-Looted Art Disputes: Creation of an International Tribunal, 73 BROOK. L.
REV. 160, 215–16 (2007).
149
Holocaust Expropriated Art Recovery Act of 2016, Pub. L. No. 114-308, 130
Stat. 1524 (codified as amended at 22 U.S.C. § 1621 note (2012 & Supp. IV 2016)).
2019] LOST TO THE AGES 623
investigate whether an artwork formerly belonged to the claimant,
and to determine if they can establish ownership.
150
HEARA was influenced in some degree by the adoption of
the Washington Principles on Nazi-Confiscated Art in 1998.
151
“With
the adoption of the Washington Principles . . . [forty-four] States
formally embraced the idea that Holocaust-related claims sh ould be
settled on the merits of each case rather than on the basis of
technical defenses.”
152
To be sure, Holocaust-related claims bear a
special sensitivity both internationally and domestically.
Nonetheless, there is no reason other nations and peoples cannot
learn from and benefit from the international treatment of the Nazi-
stolen art and antiquities.
B. Common Law
No federal statut es provide an avenue for the restitution
of foreign cultural heritage that has been in the United States for
decades. This leaves foreign st ates with only common law
remedies for such cases such as replevin and conversion. In
Turkey v. Christie’s, Inc., Turkey sued for both replevin and
conversion.
153
For this reason and considering New York’s key
position as the hub of the U.S. art market, this note will use New
York’s common law as the exemplary model case for the whole
country, with exceptions noted when relevant.
“Replevin is a [common law] remedy to recover possession
of personal property and to recover damages incurred as a result
of a defendant’s illegal detention of the property.”
154
In most
states, the elements of replevin require the plaintiff to prove
that: (1) the personal property in question is “a specific,
identifiable item”; (2) the plaintiff has a right or title to the
property; (3) the property was unlawfully detained; and (4) “the
defendant wrongfully holds possession” of the property.
155
In New York, the settled law requires a plaintiff to “show
(1) that it has a superior possessory right to the chattel, and (2) that
it made a demand for possession of the chattel from the
defendant.”
156
Replevin has been invoked several times in New
150
Jason Barnes, Note, Holocaust Expropriated Art Recovery (HEAR) Act of
2016: A Federal Reform to State Statutes of Limitations for Art Restitution Claims, 56
COLUM. J. TRANSNAT’L L. 593, 595 (2018).
151
CHECHI, supra note 30, at 45.
152
Id.
153
Turkey Complaint, supra note 4, at 5–7.
154
77 C.J.S. Replevin § 3 (2018).
155
Id.
156
See, e.g., Press Access LLC v. 1 800 Postcards, Inc., No. 11 Civ.1905(KBF),
2012 WL 4857547, at *1 (S.D.N.Y. Oct. 9, 2012).
624 BROOKLYN LAW REVIEW [Vol. 84:2
York in actions to recover stolen art.
157
Foreign nations, as
plaintiffs, “must prove that the Government . . . was the legal owner
at the time of [the objects’] removal from that country. . . . [which]
depends upon the [country’s] laws.”
158
As in Turkey v. Christie’s,
proving ownership becomes a significant hurdle to overcome,
especially when the property at issue was removed from the foreign
state before the 1970 UNESCO Convention, or worse, before the
state established patrimony laws.
159
Despite these difficulties, plaintiffs have used replevin in
several cases to successfully retr ieve stolen art or antiquities. One
such case is Bakalar v. Vavra, in which replevin was used by the
heirs of a Jewish collector to seek the return of artwork stolen by
the Nazis during World War II from the current possessor.
160
There, the United States Court of Appeals for the Second Circuit
held that “under New York law . . . ‘absent other considerations an
artwork stolen during World War II still belongs to the original
owner, even if there have been several subsequent buyers and even
if each of those buyers was completely unaware that she was
buying stolen goods.’”
161
The court also noted that “New York law
places the burden on . . . the curren t possessor, to prove that the
[work] was not st olen.”
162
After proving ownership, foreign states still bear the
burden of showing that a good faith purchaser does not have a valid
title.
163
For example, in The Republic of Croatia and Others v. The
Trustee of the Marquess of Northampton, Lebanon, Croatia, and
Hungary brought suit in New York seeking restitution of Roman
silver in the possession of Lord Northampton.
164
Although the
states established their right to possession of the artifacts,
165
they
could not provide more than speculative evidence that the goods
were illegally removed from their original location.
166
Thus the case
was dismissed on the presumption that Lord Northampton held
valid title.
167
Croatia is evidence that, even when their claims have
157
See, e.g., Bakalar v. Vavra, 619 F.3d 136, 139 (2d Cir. 2010); Kozar v.
Christie’s, Inc., No. 30029/10, 2011 WL 1886585, at *6 (N.Y. Sup. Ct. May 18, 2011).
158
Gov’t of Peru v. Johnson, 720 F. Supp. 810, 812 (C.D. Cal. 1989).
159
See discussion supra Section I.B.
160
Bakalar, 619 F.3d at 137–39.
161
Id. at 141 (quoting Michelle I. Turner, Note, The Innocent Buyer of Art
Looted During World War II, 32 VAND. J. TRANSNAT’L L. 1511, 1534 (1999)).
162
Id. at 147. Accord Solomon R. Guggenheim Found. v. Lubell, 77 N.Y.2d
311, 321 (1991) (“[T]he burden of proving that the painting was not stolen properly
rests with the [p ossessor].”).
163
Republic of Croatia v. Tr. of Marquess of Northampton 1987 Settle., 610
N.Y.S.2d 263, 264–65 (App. Div. 1994).
164
Id. at 265; CHEC HI, supra note 30, at 142.
165
Republic of Croat ia, 610 N.Y.S.2d at 265.
166
Id.
167
Id. at 264.
2019] LOST TO THE AGES 625
merit, foreign nations face serious obstacles in their attempts to
succeed on replevin claims.
Conversion is a common law remedy similar to replevin,
except that in a conversion claim the plaintiff must prove that the
defendant not only possesses the property unlawfully, but also
that properties under defendant’s control suffered “alteration of
their condition, or the exclusion of the owner’s rights.”
168
Thus,
conversion requires the plaintiff to prove that the defendant’s
unlawful possession injured the property in some way. Like
replevin, conversion has appeared in art-related cases
169
and has
many of the same considerations, requiring proof of ownership
and evidence that the defendant took the owner’s property
without permission.
170
Conversion is often argued in addition to
or as an alternative to replevin.
171
Despite the success of private ow ners receiving restitution
of stolen works, foreign countries have not enjoyed the same luck
with replevin claims. Turkey itself has sought restitution of
cultural heritage at least three times under actions for replevin
or conversion.
172
As the party relying on foreign statutes, Turkey
bears the burden of proof.
173
It must show that its laws awarded
title of antiquities to the state at the time of their removal.
174
Turkey has yet to prove this, however, since besides the current
litigation, two prior cases resulted in a settlement before a court
could render a ruling on the merits.
175
C. Limitations Protecting Current Owners
Once a work has been stolen, any subsequent possessor
thereof faces the risk of a restitution claim. This is because under
the traditional New York common law of property, a thief can never
convey good title, regardless of the buyer’s lack of knowledge of the
168
23 N.Y. JUR. 2D Conversion, Etc. § 18 (2018).
169
See, e.g., Komolov v. Segal, 957 N.Y.S.2d 99, 100–01 (App. Div. 2012)
(allegations of defendants’ removal of two paintings from plaintiff’s office sufficient to state
a conversion claim).
170
Compare 23 N.Y. JUR. 2D Conversion, Etc. § 18 (2018) with 77 C.J.S.
Replevin § 3 (2018).
171
See, e.g., Turkey Complai nt, supra note 4, at 5, 7; Republic of Turkey v.
Metro. Museum of Art, 762 F. Supp. 44, 45 (S.D.N.Y. 1990).
172
See Republic of Turkey v. OKS Partners, 797 F. Supp. 64, 66 (D. Mass. 1992);
Metro. Museum of Art, 762 F. Supp. at 45; see also Turkey Complain t, supra note 4, at 5, 7.
173
Biocon Ltd. v. Abraxis Bioscience, Inc., No. 16-CIV-6894 (RMB), 2016 WL
5817002, at *3 (S.D.N.Y. Sept. 26, 2016).
174
See Govt. of Peru v. Johnson, 720 F. Supp. 810, 812 (C.D. Cal. 1989).
175
Christie’s Opposition Brief, supra note 7, at 17–18.
626 BROOKLYN LAW REVIEW [Vol. 84:2
seller’s right in the property.
176
Art is no exception to this rule.
177
On
the other hand, good faith purchasers are not defenseless.
Purchasers may secure good title, if they can show that the true
owner failed to exercise reasonable diligence in the pursuit of the
stolen property.
178
Possessors of cultural property may be unaware that they
hold illegally-obtained property. The United States has developed a
number of protections for these good faith owners.
179
Laches, for
example, is a doctrine that awards diligent owners, but punishes
those that have neglected to discover the location of their stolen
property.
180
Laches and statutes of limitation protect current owners
against “stale claims” and “balanc[e] the rights of theft victims
against the interests of good faith purchasers.”
181
In the United States, these protections vary from state to
state. There are three main types of statutes of limitations that
apply to stolen property. The most widespread can be considered a
“due diligence” limitation.
182
In this case, a six-year statute of
limitations accrues starting at the moment the true owner should
have discovered the current location and owner of the stolen
property had they exercised reasonable diligence.
183
In California,
the six-year statute of limitations accrues on the moment of “actual
discovery.”
184
New York follows a “demand and refusal rule,”
wherein the statute of limitations requires suit no more than three
years after the true owner demands the return of the object and the
possessor refuses to relinquish it.
185
For comparison, some European nations have even stricter
laws protecting good faith purchasers and the security of their
transactions.
186
France, Germany, and Switzerland, for example,
have statutes that begin at the time of the theft, and “allow bona fide
purchasers to acquire good title once the applicable limitation period
has run . . . even if the seller did not have such a title.”
187
Italy
foregoes the statute of limitations entirely; “title passes immediately
176
Kozar v. Christie’s, Inc., No. 30029/10, 2011 WL 1886585, at *6 (N. Y. Sup. Ct.
May 18, 2011).
177
Id.
178
Solomon R. Guggenheim Found. v. Lubell, 77 N.Y.2d 311, 321 (1991).
179
Steven A. Bibas, Note, The Case Against Statutes of Limitations for Stolen
Art, 103 YALE L. J. 2437, 2449 (1994).
180
Id. at 2449–50.
181
CHECHI, supra note 30, at 89.
182
Id.
183
Id.
184
CAL. CIV. PROC. CODE § 338(3)(A) (2019).
185
CHECHI, supra note 30, at 89.
186
Id.
187
Id.
2019] LOST TO THE AGES 627
upon purchase with a valid contract.”
188
Strict interpretation of the
statute of limitations protects art collectors and incentivizes true
owners to exercise due diligence once a theft is discovered; but too
strict a limitation destroys good claims and offers no relief for thefts
that occurred long ago.
IV. A SMALL STEP FORWARD: IRAN V. BARAKAT
As previously noted, UNESCO and the ICPRCP are two of
the major international organizations monitoring the disposition of
cultural property.
189
Although both provide mediation services to
member states, their services only apply to states, and are of no use
against private individuals.
190
Further, both organizations suffer
from a reliance on domestic enforcement.
191
It follows then, that
many states have resorted to domestic litigation, rather than
international arbitrat ion. The obstacles foreign states face in
domestic court systems vary from st ate to state depending on each
state’s laws and traditions. Switzerland, for example, hosts major
art markets,
192
and has some of the strongest protections for good
faith purchasers; perhaps explaining why “Switzerland has become
a fav orite stopping point along the art trade route.”
193
Similarly, the United Kingdom is home to an impressive art
market and many museums.
194
Despite its controversies, however,
the United Kingdom recently moved towards broader recognition of
foreign patrimony laws.
195
In Iran v. Barakat, Iran successfully
argued a conversion claim against the London-based Barakat
Gallery in the English Court of Appeal.
196
In this case, Iran sued the
Barakat Gallery to recover a collection of 5,000-year-old
antiquities.
197
Iran claimed the antiquities were illegally taken from
excavations in Iran, while Barakat argued that it legally “purchased
188
Id.
189
See discussion supra Section I.B.
190
See supra note 64 and accompanying text.
191
See supra note 63–66 and accompanying text.
192
See Artsy Editors, supra note 94.
193
Borodkin, supra note 131, at 387.
194
Artsy Editors, supra note 94.
195
For example, the United Kingdom is the curre nt home of the Elgin Marbles,
subject of one of the most famous and controversial cases of restitution. Parthenon
Sculptures, BRIT. MUSEUM, http://www.britishmuseum.org/about_us/news_and_press/
statements/parthenon_sculptures.aspx [https:// perma. cc/R6P P-EF2Q]. Indeed, the
question of whether the Elgin Marbles ought to be returned to Greece remains hotly
contested. See generally John Henry Merryman, Whither the Elgin Marbles?, in
IMPERIALISM, ART AND RESTITUTION 98, 98 (2006) (discussing the continuing controversy
over the Elgin Marbles).
196
Gov’t of the Islamic Rep. of Iran v. The Barakat Galleries Ltd. [2007] EWCA
(Civ) 1374 [1], [5] (Eng.); see discussion infra Section III.B.
197
Id. at [3].
628 BROOKLYN LAW REVIEW [Vol. 84:2
[the property] in France, Germany, and Switzerland.”
198
The court
required Iran to prove that it had title to the antiquities, and that
Barakat had wrongfully interfered with that title.
199
In establishing
title, Iran relied on its own domestic patrimony laws.
200
In its
groundbreaking decision, the English Court of Appeal applied Iran’s
patrimony laws despite Iran’s lack of evidence of actual possession,
and in conclusion decided those patrimony laws outweighed any
legal title acquired by Barakat.
201
In the Barakat case, unlike similar
cases in the United States,
202
the English Court of Appeals expanded
the recognition of foreign patrimony laws, and recognized a balance
of interests between good faith purchasers and source nations.
V. AN ACT RECOGNIZING FOREIGN PATRIMONY LAWS
A. Foreign States Prefer Domestic Litigation
As established, the most effective, oft-utilized method of
antiquities-related dispute resolution is domestic litigation.
203
No
international body currently offers binding dispute resolution.
204
The
creation of a new body suffers from problems of state consent and
uniformity.
205
As a result, the vast majority of cultural heritage
disputes settle in legal proceedings before domestic courts.
206
To be
sure, domestic litigation presents its own collection of drawbacks. In
the art world, for example, “litigation does not provide the secrecy
and the confidentiality that parties to art-related disputes need to
protect their relationships.”
207
Nonetheless, there are benefits to litigation not found in
other dispute resolution methods. First, unlike arbitration, at the
end of litigation a definitive and enforceable judgment on the
issue applies.
208
Second, the decisions of domestic courts impact
future disputes. They help to “establish legal precedents,” clarify
the limitations of the law, and thereby “deter further wrongs.”
209
Finally, domestic courts can have a law-making effect, either
“supplementing—or overcoming the failure to act of—legislators.”
210
198
Id. at [4]–[5].
199
Id. at [6].
200
Id. at [7].
201
See id. at [149]; see also CHECHI, supra note 30, at 94.
202
See discussion supra Section III.B.
203
See supra Part II.
204
See supra notes 66–70 and accompanying te xt.
205
See supra note 87.
206
CHECHI, supra note 30, at 138.
207
CHECHI, supra note 30, at 143.
208
Id. at 139.
209
Id.
210
CHECHI, supra note 30, at 139–40.
2019] LOST TO THE AGES 629
Decisions by domestic judges can fill in blanks and aid in
interpreting both domestic and international obligations; in fact,
“the judgments of domestic courts are of considerable practical
importance for determining what is the correct rule of
international law.”
211
A domestic solution in the United States is
a solution preferred by domestic and international parties,
because it recognizes interests on all sides of the issue: the art
market and the foreign state, the cultural nationalist and cultural
internationalist.
212
Cultural internationalists and nationalists
agree that “an open and licit trade in cultural property” could
benefit humanity.
213
Yet illicitly obtained goods, even those long
since de-contextualized, will always be an issue.
214
The domestic
litigation solution attempts to find a middle ground, on the one
hand easing the burden of proof of ownership, while on the other
hand providing protections for art dealers and collectors who
purchased in good faith and can supp ort their rightful claim.
B. Federal Legislation Recognizing Patrimony Laws in
Civil Su
its
Federal legislation has helped to secure the restitution of at
least some cultural property.
215
Nevertheless, claimants must meet
the demands required by statute or common law. Typically, the
largest obstacle parties face when filing claims for restitution is “the
burden of providing title.”
216
Notably, HEARA lightened that burden
for stolen Holocaust art by narrowly focusing on works stolen
between 1933 and 1945.
217
In addition, HEARA extended the statute
of limitations to allow claimants more time to prove title.
218
Unlike Holocaust art, however, foreign states seeking the
return of stolen works must use common law remedies, and must
rely on patrimony laws and export statutes as the basis for their
claim.
219
To make matters more difficult, states which seek the
restitution of antiquities excavated in secret from unknown
archaeological sites must prove that their national patrimony laws
were in place at the time of the theft.
220
Further, they must show
211
Id. at 140.
212
Merryman, supra note 37, at 852–53.
213
Id. at 847.
214
See id.
215
See discussion supra Section III.A.
216
CHECHI, supra note 30, at 140.
217
Holocaust Expropriated Art Recovery Act of 2016, Pub. L. No. 114-308, 130
Stat. 1524 (codified as amended at 22 U.S.C. § 1621 note (2012 & Supp. IV 2016)).
218
Id.
219
See supra notes 101–106 and accompanying text.
220
McClain, 545 F.2d at 1003.
630 BROOKLYN LAW REVIEW [Vol. 84:2
that their patrimony laws are more than mere export laws and thus
have extraterritorial effect,
221
and finally, they must deal with good
faith purchaser defenses.
222
These challenges in U.S. domestic courts
have a particular impact on foreign nations hoping to establish
ownership of antiquities exported prior to 1970.
Rather than relying on common law remedies, foreign states
need a civil remedy at the federal level to recover stolen art. The
United States has already taken steps to facilitate restitution in
certain claims, such as art stolen during the Holocaust.
223
Like
HEARA, this remedy could continue to protect good faith purchasers
through statutes of limitations, but might extend the time of that
statute to account for theft that took place long before developing
countries had the means to pursue the thieves.
Congress should pass a law for the recovery of stolen
antiquities, creating a civil cause of action for UNESCO member
states seeking restitution of art or antiquities illegally removed
from the country prior to the 1970 UNESCO Convention. Such a
law would reinforce the United States’ obligations to other state
parties under UNESCO.
224
The new remedy should require the
UNESCO state to (1) prove ownership, (2) prove theft, and (3) prove
that it requested for the return of the property and that the request
was refused. Tak ing a cue from Iran v. Barakat, the first factor
ought to include a recommendation that courts defer to foreign
patrimony laws,
225
regardless of the age or amount of practice,
unless that law was not in effect when the alleged theft took place.
The second factor, then, must counterbalance this broad
recognition by requiring mor e from the claimant.
Drawing on NSPA jurisprudenc e like Schultz,
226
the second
prong ought to require the state seeking restitution to show
evidence that the work or works were actually stolen or otherwise
illegally exported. By requiring actual evidence that the law was
broken, the bulk of the state’s evidentiary burden will be in proving
that there was a bad act, rather than in defending patrimony laws.
To be sure, proof of an illegal act that happened decades ago may
be hard to come by; but this requirement prevents foreign
governments from taking advantage of the law and exercising their
patrimony laws to the detriment of genuine U.S. collectors. In a
manner similar to the treatment of artworks looted during the
221
See supra notes 107–109 and accompanying text.
222
See supra Section III.C.
223
See discussion supra notes 149–152 and accompanying text.
224
1970 UNESCO Convention, supra note 18, 823 U.N.T.S. at 240.
225
See supra Part IV.
226
United States v. Schultz, 178 F. Supp. 2d 445, 445 (S.D.N.Y. 2002) aff’d 333
F.3d 393 (2d Cir. 2003); see also discussion supra note 127–129 and accompanying text.
2019] LOST TO THE AGES 631
Holocaust, this remedy enables resolutions of cultural heritage
disputes on a case-by-case basis, rather than on technical and
tenuous defenses such as proving owners hip.
Good faith possessors should not lose their defenses,
either. Possessors will still be able to assert defenses such as the
statute of limitations. The new law should include a provision
extending the applicable limitations period to six years as now
observed regarding art stolen during the Holocaust.
227
The
statute of limitations ought to begin after the claimant’s actual
discovery of the identity and location of the artwork or property,
or (unlike HEARA) the date when the claimant should
reasonably have discovered the artwork or property.
228
The
reasonable discovery addition further protects good faith
purchasers like museums, who may have long possessed the
goods, and incentivizes states to be vigilant when they know
their cultural heritage has been stolen.
Finally, consistent with UNESCO, this new civil remedy
would require the foreign state whose suit succeeds to bear the
costs of litigation and the return of the cultural property in
question.
229
These costs may be expensive, but this proposal
balances the competing interests of cultural internationalists and
cultural nationalists by ensuring that
230
—even if there is a strong
claim—arts, antiquities, and other objects of cultural heritage are
not returned to a state that cannot afford to properly care for an d
protect them. To be sure, these objects belong in the state that
they came from, but not if they will simply be destroyed.
231
No doubt the financial interests of investors and collectors in
the U.S. art world weigh against legislating a path that facilitates
the recovery of cultural property by foreign states. As noted in
Schultz, however, courts have held that the risk to art dealers is not
a valid objective to justify avoiding foreign patrimony laws.
232
Instead, there is a general public policy argument in favor of “the
general interest in the protection of cultural heritage.”
233
Consider
the case of Iran v. Barakat, the U.K. decision in which the English
Court of Appeal held that Iran’s patrimony laws conferred a title
227
Holocaust Expropriated Art Recovery Act of 2016, Pub. L. No. 114-308,
§ 5, 130 Stat. 1524 (codified as amended at 22 U.S.C. § 1621 note (2012 & Supp. IV 2016)).
228
CHECHI, supra note 30, at 89 (comparing “actual discovery” to “reasonabl e”).
229
1970 UNESCO Convention, supra note 18, 823 U.N.T.S. at240 (requiring
“just compensation” be paid “to an innocent purchaser”).
230
Merryman, supra note 37 , at 852–53.
231
Mackenzie Warner, The Last Poor Plunder from a Bleeding Land: The
Failure of International Law to Protect Syrian Antiquities, 42 BROOK. J. INT’L. L. 481,
483 (2016) (discussing the destruction of cultural property during the Syrian civil war).
232
United States v. Schultz, 333 F. 3d 393, 410 (2d Cir. 2003).
233
CHECHI, supra note 30, at 92.
632 BROOKLYN LAW REVIEW [Vol. 84:2
upon the state regardless of Iran’s actual possession of the artifact.
234
The Court of Appeal ruled that the general interests of a state in
asserting title over its cultural heritage outweighed the
technicalities of possession.
235
Similarly, legislation in the United States should
acknowledge the general interests of foreign states in protecting
and reclaiming their cultural heritage. Possessors should not be
able to maintain possession of stolen property by exploiting
technicalities such as th e construction of foreign patrimony laws.
On the other hand, good faith purchasers should be able to rely
on common law defenses such as statutes of limitations, and
foreign states seeking recovery should shoulder the burden of
proving that there was a bad act.
CONCLUSION
The illegal export and trade of art and antiquities has
been going on for centuries, and the law is only just now catching
up. The 1970 UNESCO Convention was only the beginning of
this now rapidly developing area of law. The field contains a
wide variety of issues, orbiting the central motivation of the
international community to protect, preserve, and restore the
cultural heritage of the various nations and peoples of the world.
This law—cultural heritage law—is invoked any time an
individual, organization, or state seeks to reclaim objects
deemed important to artistic, archaeological, historic, or
scientific heritage.
When a country has had its cultural heritage stolen, it
has had a part of its identity stolen. States protect their
heritage through patrimony laws, and th e United States ought
to respect that. The interest of these nations in protecting,
preserving, and recovering their cul tural property should
supersede common law property rules and the difficulties their
application presents to plaintiffs.
To be sure, this stipulation would not decid e the outcome of
ongoing restitution battles, nor should it. Christie’s and the current
possessor of the Stargazer have every right to rely on all defenses
available to them in their effort to prove valid provenance.
Nonetheless, the presently limited recognition of patrimony laws
in the United States presents an unnecessary roadblock to the
recovery of stolen and looted cultural property. Hence, common law
234
Gov’t of the Islamic Rep. of Iran v. The Barakat Galleries Ltd. [2007] EWCA
(Civ) 1374 at [164] (Eng.).
235
Id. at [163].
2019] LOST TO THE AGES 633
is presently ill-equipped to govern these controversies. Instead,
greater federal recognition of the legitimate rights of foreign states
is nec essary to protect historical artifacts, like the Stargazer.
William R. Ognibene
†
†
J.D. Candidate, Brooklyn Law School, 2019; B.A. Suffolk University, 2014.
Thank you to Ali Cunneen, Alex Mendelson, Artie Shaykevich and the rest of the Brooklyn
Law Review staff for long hours spent editing footnotes an d their invaluable sugge stions
for improving this note. Thank you to my Nonno, Peter Ogni bene, for his sage editorial
advice during early drafts. And many thanks to my friends and family for accepting
“patrimony laws” as an excuse to cancel plans.
