CULTURAL PROPERTY LAW ON THE INTERNATIONAL FRONT: PAST DEALS AND

LOOTING, PRESENT REPATRIATION AND RESTITUTION, AND THE FUTURE OF THE

CULTURAL PROPERTY LAW STAGE

Brianna Coates-Strutz*

LAWSC 496 – INDEPENDENT STUDY

* I would like to extend special thanks to David Coates, J.D. for assisting in translating legal jargon and citations into more common English, as I have not yet developed a more comprehensive understanding, myself.

I. Introduction

The stolen work of Leonardo da Vinci is in my possession. It seems to belong to Italy since its painter was an Italian. My dream is to give back this masterpiece to the land from which it came and to the country that inspired it.

(Scotti, 2009)

The morning of August 21, 1911 heralded devastating tidings to the Louvre, the French,

and the art community as a whole; the woman with the most mysterious smile, The Mona Lisa –

1507-1517, was missing (DiFonzo, 2012). The painting was recovered and the thief, Vicenzo

Peruggia, arrested nearly two years later. During the interim Peruggia contacted the officials

investigating the painting’s disappearance and communicated his justification – his desire to

return The Mona Lisa to the land he considered its home, Italy (Scotti, 2009). While the

ownership of artifacts from foregone eras has been a subject of debate throughout time,

Peruggia’s rationale in taking The Mona Lisa is one of the first instances of a modern

comprehension and interpretation of Cultural Property.

Present convention holds that the term ‘Cultural Property’ encompasses three different

natures of physical representation of a cultural heritage, “irrespective of origin or ownership.”

Firstly, all forms of property; be they movable or immovable, of “great importance to the cultural

heritage of every people” including, but not limited to: monuments of architecture, art, or history

– religious or secular (Hague, 1954). Monuments can be in the form of archaeological sites,

groups of buildings “which, as a whole, are of historical or artistic interest,” scientific and

literary collectives, as well as works of art or antiquity. Furthermore, buildings purposed with

the preservation or exhibition of movable Cultural Property – museums, libraries, and

depositories of archives, and temporary shelters in the event of armed conflict, are protected

beneath the scope of ‘Cultural Property.’ The final form included, beneath the scope of ‘Cultural

Property’ are “centers containing a large amount of cultural property as [previously defined]…to

be known as ‘centers containing monuments’” (Hague, 1954).

This study will take critical consideration of the historical motivations and significance of

the establishment of Cultural Property laws; of notable instances of Cultural Property law

coming into play between nations, institutions, individuals, and any combination of the three; of

the terms of the established primary conventions and laws governing the protection and

exchange of piece-de-Cultural Property – which terms are clearly stated? which are open to

interpretation, state-to-state; of the precedents and interpretations established by the discussed

notable instances. This study will provide an impression of the parties and entities that are most

susceptible to cultural property law and of which parties and entities are most likely to initiate

claims. What can each side do to protect themselves? Finally, this study will provide an

estimation of Cultural Property disputes the world is likely to face in the future.

II. Historic Foundations

Terror as a war strategy targets, not only wide berths of a population, but cultural

symbols that would otherwise be monuments around which groups can rally. Often referred to

as a “war against architecture,” the destruction of the cultural property “of an enemy people or

nation as a means of dominating, terrorizing, dividing or eradicating” is a tangible war strategy

that was practiced by Nazi Germany (XYZ). “A library or art gallery is a cache of historical

memory, evidence that a given community’s presence extends into the past and legitimizing it in

the present and on into the future. In these circumstances structures and places with certain

meanings are selected for oblivion with deliberate intent” (XYZ). Under this mindset – this

stratagem of cultural oblivion – there is no ‘collateral damage,’ cultural property is decimated in

an “active and often systematic destruction [to ensure]…the erasure of the memories, history and

identity attached to architecture and place – enforced forgetting – is the goal itself” (XYZ).

Widespread cultural ruin “perpetrated by Nazi Germany during the Second World War” proved

to be the momentum for the foundation of an international convention, established with the intent

to protect cultural property in the future, to prevent subsequent wreckage; thus, The Hague

Convention of 1954 was written in the wake of devastation (The Iraq Museum).

The Hague Convention of 1954, originally meant as a supplementary code of conduct

during war-time, has served to open doors for repatriation, the return of art, antiquity, reliquary,

and cultural property in general to the countries of the item’s origin outside the scope of items

seized as spoils of war. The Hague Convention of 1954 has also subsequently led to the

establishment of a number of conventions, acts and laws to protect the cultural property of

nations, and facilitate the property’s return. There have numerous instances in which there has

been a demand for the repatriation of cultural property to the home nation of the piece’s cultural

heritage and significance. Some demands for repatriation have been resolved privately; others

have necessitated the participation of national and international courts; while still others have yet

to find resolution.

III. Notable Instances of Cultural Property Disputes

Repatriation of the Looted Kneeling Attendants Sculptures of Angkor Wat

Though tensions had been brewing since the 1960s, the Communist Party of Kampuchea

(CPK) – also known as the Khmer Rouge took power in Cambodia on April 17, 1975

(Cambodian Tribunal). Over the course of the next four years the Khmer Rouge would enact

one of the most substantial genocides in modern history; not only victim to the ‘revolution’ were

the people of Cambodia, but the cultural history that had been richly established in the country.

To accomplish their aim of a rural, classless Cambodia; the CPK “abolished money, free

markets, normal schooling, private property, foreign clothing styles, religious practices, and

traditional Khmer culture” (Cambodian Tribunal). This repression and ‘reeducation’ proved

affect not only the people subject to the terror of the Khmer Rouge; but also, the cultural cites of

Cambodia. Many ancient sites fell at the hands of the CPK; others survived, but were severely

crippled by destruction and looting, including the world famous site of Angkor Wat.

Though the Khmer Rouge lost complete autonomy in January of 1979, they continued to

exercise indisputable influence over Cambodia well into the 1990s (Kieman, 2002). It is only

since the official fall of the Khmer Rouge in the mid-1990s that Cambodia has managed to

develop a modicum of stability and has since sought to reclaim cultural property that was looted

or destroyed by the hands of Khmer Rouge. The Cambodian search to reclaim their cultural

property led them to a pair of statues on display at the New York Metropolitan Museum of Art

(Met) known as The Kneeling Attendants, which had been gifted to the museum over the course

of five years (Bulmental, Mashberg, 2013). The Met had received the initial pieces of the

sculptures, the heads, in 1987 – a joint gift from Douglas A. J. Latchford the London auction

house, Spink & Son – and 1989; the second head was “donated by Raymond G. and Milla Louise

Handley who had originally bought the artifact at Spink” (Bulmental, Mashberg, 2013). The

torsos would be added to the collection in 1992, facilitated by one of the original gift givers, Mr.

Latchford, to be rejoined with the heads in 1993, but the museum conservators.

The suspicious provenance of The Kneeling Attendants, when brought to the attention of

the Met’s executives, was addressed with commitment to discover the truth. In April of 2013,

when faced with various forms of evidence supporting Cambodia’s claim to the two masterworks

including documentation from Cambodian officials detailing the looting and smuggling of the

two “10th-century Khmer statues…out of [the] remote jungle temple” in the wake of the

country’s civil war in the 1970s; as well as presentation of the “statues’ broken-off bases [that

had been found] still at the temples” (Bulmental, Mashberg, 2013). After the provision of

evidence, the Met confirmed “it would repatriate the life-size sandstone” monuments

(Bulmental, Mashberg, 2013).

The Met’s decision reflects the growing sensitivity by American museums to claims by foreign countries for the return of their cultural artifacts. Many items that have long been displayed in museums do not have precise paperwork showing how the pieces left their countries of origin. In recent years, at the urging of the Association of Art Museum Directors and scholars, many museums have applied more rigorous standards to their acquisitions.

(Bulmental, Mashberg, 2013)

The discussions between The New York Metropolitan Museum of Art and the

Cambodian government prove that it is possible for these disputes to be resolved outside of a

court. Unfortunately, despite evidence of successful private resolution, the norm is that legal

action must be taken in order to find a resolution between parties debating cultural property.

Autocephalous Greek-Orthodox Church of Cyprus and The Republic of Cyprus V.

Goldberg and Feldman Fine Arts, Inc., and Peg Goldberg

In Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts,

Inc., 917 F.2d 278, 279 (7th Cir. 1990), the Seventh Circuit Court of Appeals considered an

appeal brought by a museum owner following a lawsuit brought by the Republic of Cyprus and

Church of Cyprus to recover mosaics which had been stolen from Greek-Orthodox church, and

ultimately purchased by museum owner. As background, the court wrote:

In the early sixth century, A.D., a large mosaic was affixed to the apse of the Church of the Panagia Kanakaria (“Kanakaria Church”) in the village of Lythrankomi, Cyprus. The mosaic, made of small bits of colored glass, depicted Jesus Christ as a young boy in the lap of his mother, the Virgin Mary, who was seated on a throne. Jesus and Mary were attended by two archangels and surrounded by a frieze depicting the twelve apostles. The mosaic was displayed in the Kanakaria Church for centuries, where it became, under the practices of Eastern Orthodox Christianity, sanctified as a holy relic.

(Autocephalous, et. al., 1990)

In July 1974, Turkey invaded Cyprus. Cyprus was divided between the Turkish Cypriots,

concentrated in the north of the island, and the Greek Cypriots concentrated in the southern

portion of Cyprus (Asmussen, 2008). Lythrankomi is in the northern portion of Cyprus that

came under Turkish rule. The village and the Kanakaria Church were initially untouched by the

invading forces, and for two years the pastor and priests of the Kanakaria Church continued to

conduct religious services for the Greek Cypriots who remained in Lythrankomi. However, by

the summer of 1976, virtually all remaining Greek Cypriots were forced to flee to southern

Cyprus, known as the Republic of Cyprus (Autocephalous, et. al., 1990). When the priests

evacuated the Kanakaria Church in 1976, the mosaic was still intact.  In the late 1970s,

Church of Cyprus officials increasingly received reports that churches and monuments were

being attacked and vandalized, their contents stolen or destroyed. In November, 1979, a resident

of northern Cyprus brought word to the Republic's Department of Antiquities that this fate had

also befallen the Kanakaria Church and its mosaic (Autocephalous, et. al., 1990). 

Upon learning of the looting of the Kanakaria Church and the loss of its mosaics, the

Republic of Cyprus took immediate steps to recover them. These efforts took the form of

contacting and seeking assistance from many organizations and individuals, including the United

Nations Educational, Scientific and Cultural Organization (“UNESCO”); the International

Council of Museums; the International Council of Museums and Sites; and others

(Autocephalous, et. al., 1990).  The overall strategy behind these efforts was to get word to the

experts and scholars who would probably be involved in any ultimate sale of the mosaics. These

individuals, it was hoped, would be the most likely actors in the chain of custody of stolen

cultural properties who would be interested in helping the Republic and Church of Cyprus

recover them. The Republic's efforts have paid off. In recent years, the Republic has recovered

and returned, to the Church of Cyprus, several stolen relics and antiquities. The Republic has

even located frescoes and other works taken from the Kanakaria Church, including the four

mosaics that initiated the hunt for lost cultural property (Autocephalous, et. al., 1990).

Peg Goldberg was an art dealer and gallery operator from Carmel, Indiana. In the summer

of 1988, Ms. Goldberg went to Europe to shop for works for her gallery. Although her main

interest was 20th century paintings, etchings and sculptures, while in The Netherlands, she was

enticed by Robert Fitzgerald, another Indiana art dealer and “casual friend” to consider the

purchase of “four early Christian mosaics” (Autocephalous, et. al., 1990). Fitzgerald arranged a

meeting in Amsterdam, and introduced Goldberg to Michel van Rijn, a Dutch art dealer, and

Ronald Faulk, a California attorney. Van Rijn, a published expert on Christian icons, had been

convicted by a French court for art forgery; Faulk was in Europe to represent Fitzgerald and van

Rijn.

At the meeting in Amsterdam, van Rijn showed Goldberg photographs of the four

mosaics at issue in this case and told her that the seller wanted $3 million for them. Goldberg

“fell in love” with the mosaics (Autocephalous, et. al., 1990). Van Rijn told her that the seller

was a Turkish antiquities dealer who had “found” the mosaics in the rubble of an “extinct”

church in northern Cyprus while working as an archaeologist “assigned by Turkey to northern

Cyprus” (Autocephalous, et. al., 1990). Goldberg was also told the seller had exported the

mosaics to his home in Munich, Germany with the permission of the Turkish Cypriot

government. Goldberg was not initially given the seller's identity but was told that Faulk, on

behalf of Fitzgerald and van Rijn, had already met with this unidentified seller to discuss the sale

of these mosaics. Her interest quite piqued, Goldberg asked Faulk to return to Munich and tell

the seller, Aydin Dikman, that she was interested (Autocephalous, et. al., 1990).

When Goldberg met with Faulk on his return, she was merely informed that Dikman still

had the mosaics, was “actively negotiating with another buyer” and that, in Faulk's opinion the

export documents Dikman had shown him were in order (Autocephalous, et. al., 1990). Faulk

apparently showed Goldberg copies of a few of these documents, none of which, of course, were

genuine, and at least one of which was obviously unrelated to these mosaics. 

The next day, the principals gathered again in Amsterdam, and agreed to “acquire the

mosaics for their purchase price of $1,080,000 (U.S.), and to split the profits from any resale of

the mosaics as follows: Goldberg 50%; Fitzgerald 22.5%; van Rijn 22.5%; and Faulk 5%”

(Autocephalous, et. al., 1990). A document regarding the agreement was executed on July 4,

1988, which included a choice of law provision reading, “This agreement shall be governed by

and any action commenced will be pursuant to the laws of the state of Indiana” (Autocephalous,

et. al., 1990).

During the few days that Goldberg waited in Switzerland for the purchase money to

arrive, she placed several telephone calls concerning the mosaics. She testified that she wanted to

make sure the mosaics had not been reported stolen, and that no treaties would prevent her from

bringing the mosaics into the United States. She called UNESCO's office in Geneva and inquired

as to whether any treaties prevented “the removal of items from northern Cyprus in the mid- to

late–1970s to Germany,” but did not mention the mosaics (Autocephalous, et. al., 1990).

Goldberg claims to have called the International Foundation for Art Research (“IFAR”), an

organization that collects information concerning stolen art, and asked IFAR whether it had any

record of a claim to the mosaics, IFAR told her it did not. The court found that Goldberg

did not contact the Republic of Cyprus; the Church of Cyprus; “Interpol,” a European

information-sharing network for police forces; nor “a single disinterested expert on Byzantine

art” (Autocephalous, et. al., 1990). 

Once the mosaics were acquired, Ms. Goldman turned her efforts to their resale. She

worked up sales brochures and contacted other art dealers. Two of those art dealers’ further

investigation led them to Dr. Marion True of the Getty Museum in California (Autocephalous, et.

al., 1990). Dr. True upon learning the source of the mosaics, explained she had a working

relationship with the Republic of Cyprus and was duty bound to contact them, which she did.

One of those Dr. True called was Dr. Vassos Karageorghis, the Director of the Republic's

Department of Antiquities and one of the primary Cypriot officials involved in the worldwide

search for the mosaics (Autocephalous, et. al., 1990). That contact set in motion the legal

machinery which resulted in the Republic of Cyprus and the Church of Cyprus to request return

of the mosaics. When Goldberg refused the request, the Republic and the Church brought a

lawsuit in Indiana.

In the lawsuit, Goldberg asserted a number of technical defenses: jurisdiction, the status

of the Church of Cyprus as a legal entity, Cyprus’ diligence to enforce its claim to the mosaics,

and the statute of limitations, none which had anything to do with the merits of her claim to the

ownership of the mosaics. The court found the Republic of Cyprus took substantial and

meaningful steps, from the time it first learned of the disappearance of the mosaics, to locate and

recover them (Autocephalous, et. al., 1990). Those efforts, targeted at the likely points of sale of

the mosaics, were sweeping and consistent with trade practices. Indeed, one expert, a curator

from an art gallery in Baltimore, Maryland, testified at trial that Cyprus “stands apart” in its

efforts to recover stolen cultural properties (Autocephalous, et. al., 1990).

The Seventh Circuit ultimately found 1) the Kanakaria Church was and is owned by the

Holy Archbishopric of the Church of Cyprus, a self-headed church associated with the Greek–

Orthodox faith; 2) the mosaics were removed from the Kanakaria Church without the

authorization of the Church or the Republic, even the TRNC's (“Turkish Republic of Northern

Cyprus”) unsuccessful motion to intervene claimed that the mosaics were improperly removed;

and 3) Goldberg, as an ultimate purchaser from a thief (Dikman), has no valid claim of title or

right to possession of the mosaics (Autocephalous, et. al., 1990).

The judgment of the trial court was affirmed and acted upon. Cyprus is not alone in its

loss of cultural property; however, to the credit of national governments, there are instances in

which the government of the recipient takes proactive steps in seizing and returning items of

cultural property – effective preemptive repatriation – without the petition of another government

or institution. One such instance is seen in United States v. Eighteenth Century Peruvian Oil on

Canvas Painting of Doble Trinidad.

United States V. Eighteenth Century Peruvian Oil on Canvas Painting of Doble

Trinidad

United States v. Eighteenth Century Peruvian Oil on Canvas Painting of Doble Trinidad ,

is a case of governmental action under Cultural Property Implementation Act (CPIA), United

States v. Eighteenth Century Peruvian Oil on Canvas Painting of Doble Trinidad, 597 F. Supp.

2d 618 (E.D. Va. 2009), the United States seized and administratively forfeited two paintings

under CPIA which the claimant had imported from Bolivia, and claimant contested (United

States v. Eighteenth Century Peruvian Oil on Canvas Painting of Doble Trinidad, 2009).

The undisputed facts were: in the late summer or early fall of 2005, Exipion Ernesto

Ortiz–Espinoza (“Claimant”), a citizen of Bolivia, brought the two paintings into the United

States from Bolivia. One, an eighteenth century oil on canvas painting known as “Doble

Trinidad” or “Sagrada Familia con Espiritu Santo y Dios Padre” (“Holy Family”) and the

second, a seventeenth century oil on canvas painting known as either “San Antonio de Padua” or

“Santa Rosa de Lima” (“Saint Anthony”) In court they were referenced as the “Defendant

Paintings” (United States v. Eighteenth Century Peruvian Oil on Canvas Painting of Doble

Trinidad, 2009). Claimant brought the paintings into the United States via Miami International

and Reagan Washington National Airports. For transport, the paintings were cut from their

frames, rolled up, and packed in cardboard cylinders (United States v. Eighteenth Century

Peruvian Oil on Canvas Painting of Doble Trinidad, 2009).

Claimant gave the paintings to Hugo Joaquin Borda (“Borda”) to take to an art gallery.

Borda took the paintings to St. Luke's Gallery in Washington, D.C., where Borda was informed

that the paintings needed to be restored. Borda agreed and the restoration took seven months to

complete at a cost of $3,910 (United States v. Eighteenth Century Peruvian Oil on Canvas

Painting of Doble Trinidad, 2009). After the restoration, St. Luke's retained the paintings to sell

on consignment. As a prerequisite, St. Luke's asked Claimant to document his ownership of the

Defendant Paintings. Claimant submitted a letter describing the paintings and how he had

acquired them, stating that they were of the Cuzco School and that they originated in Alto Peru

(now Bolivia). He was unable, however, to provide official documentation (United States v.

Eighteenth Century Peruvian Oil on Canvas Painting of Doble Trinidad, 2009).

St. Luke's sent the paintings to William Garrett Hodges (“Hodges”), an art dealer and

Peruvian art expert. He confirmed the paintings were representative of the Cuzco School of Art

but had been crudely cut from their frames. Hodges concluded that the Defendant Paintings

might be stolen and contacted the FBI (United States v. Eighteenth Century Peruvian Oil on

Canvas Painting of Doble Trinidad, 2009). The FBI sent digital images of the Defendant

Paintings to the National Institute of Culture, Directorate of Historical Patrimony Defense, in

Lima, Peru. There, art expert Juan Carlos Rodriguez Toledo concluded the Defendant Paintings

“belong to the Peruvian cultural patrimony” and are “from the colonial artistic production of

[Peru]” (United States v. Eighteenth Century Peruvian Oil on Canvas Painting of Doble

Trinidad, 2009). Based on Toledo's opinion, the FBI concluded that the Defendant Paintings

were subject to forfeiture under CIPA and seized the paintings. The FBI then had the paintings

appraised by the Department of Justice (“DOJ”), which valued them at $26,000 and $38,000,

respectively (United States v. Eighteenth Century Peruvian Oil on Canvas Painting of Doble

Trinidad, 2009).

Claimant contested the administrative forfeiture of the Defendant Paintings, and the

United States filed a Verified In Rem Complaint stating one count, for seizure and forfeiture of

the Defendant Paintings pursuant to the CPIA, 19 U.S.C. § 2609. Claimant responded by filing a

claim of ownership of the paintings supported by two sworn statements and two letters. The

government filed a Motion for Summary Judgment. After considering the summary judgment

motion of the United States, the Court determined that:

The CPIA provides for the forfeiture of “[a]ny designated archaeological or ethnological material or article of cultural property ... imported into the United States in violation of 19 U.S.C. § 2606.”  Section 2606 makes it unlawful to import “[a]ny designated archaeological or ethnological material that is exported (whether or not such exportation is to the United States) from the State Party (in this case Bolivia)... unless the State Party issues a certification or other documentation which certifies that such exportation was not in violation of the laws of the State Party.” Id. at § 2606(a).

(United States v. Eighteenth Century Peruvian Oil on Canvas Painting of Doble Trinidad, 2009)

The UNESCO Convention and the 1997 Memorandum of Understanding between the

Government of United States of America and the Government of Peru Concerning the

Imposition of Import Restrictions on Archaeological Material from the Prehispanic Cultures and

Certain Ethnological Material from the Colonial Period of Peru, as well as the 2002 and 2007

Extensions of the Memorandum (“Peru MOU”), are agreements under 19 U.S.C. § 2602. 19

C.F.R. § 12.104g (citing Treasury Decision 97–50). Id (United States v. Eighteenth Century

Peruvian Oil on Canvas Painting of Doble Trinidad, 2009). The court determined that 19 U.S.C.

§ 2610 places the initial burden on the Government to show that CPIA applies. After that is

accomplished, 19 U.S.C. § 1615 places the burden of proof in the remainder of the action on the

claimant. See An Original Manuscript Dated November 19, 1778, 1999 WL 97894, 4 –

“Congress plainly directs the court to treat a CPIA forfeiture as any other forfeiture except that

the burden of proof is initially on the government, not on the claimant” (United States v.

Eighteenth Century Peruvian Oil on Canvas Painting of Doble Trinidad, 2009).

The Court found that the Government had met its burden by stabling a prima facie case

that the Defendant Paintings are properly subject to forfeiture under the CPIA. First, Claimant

admitted the Defendant Paintings were of the Colonial era; were produced by indigenous people;

were used for religious evangelism among those people; and are important to the cultural

heritage of those people (United States v. Eighteenth Century Peruvian Oil on Canvas Painting

of Doble Trinidad, 2009). Second, the Government submitted reports by three art experts, two of

which clearly state the opinion that the Defendant Paintings originated in Peru. In addition,

Claimant repeatedly stated that he possessed no official documentation pertaining to the

Defendant Paintings (United States v. Eighteenth Century Peruvian Oil on Canvas Painting of

Doble Trinidad, 2009). Despite that, Claimant asserted that he was the rightful owner of the

Defendant Paintings. His main argument in support of his argument was that the Defendant

Paintings are from Bolivia, rather than Peru, and he submitted a certificate from the Republic of

Bolivia, Ministry of Education and Cultures (Bolivian Certificate) (United States v. Eighteenth

Century Peruvian Oil on Canvas Painting of Doble Trinidad, 2009). The Bolivian Certificate

states that the Defendant Paintings have not been reported as stolen, that they “correspond to the

Bolivian artistic heritage,” and that they “belong to the private collection of [Claimant],” who

took them to the United States for restoration (United States v. Eighteenth Century Peruvian Oil

on Canvas Painting of Doble Trinidad, 2009). However, prior to the hearing on this matter, the

Republic of Bolivia, through counsel, submitted a letter stating that 1. Claimant is a citizen of

Bolivia; 2. The Defendant Paintings originated in Bolivia; and 3. The Defendant Paintings were

exported illegally from Bolivia and should be subject to forfeiture under CPIA. Id. at 624

(United States v. Eighteenth Century Peruvian Oil on Canvas Painting of Doble Trinidad, 2009).

The court found that even if it were to accept Claimant's assertion that the Defendant

Paintings originated in Bolivia, they would still be subject to forfeiture if he imported them to the

United States without the proper documentation from that country (United States v. Eighteenth

Century Peruvian Oil on Canvas Painting of Doble Trinidad, 2009). Therefore, the court held

the Defendant Paintings were “imported into the United States in violation of 19 U.S.C. § 2606”

and were thus subject to forfeiture under the CPIA. 19 U.S.C. § 2609(a). Id. at 625 (United States

v. Eighteenth Century Peruvian Oil on Canvas Painting of Doble Trinidad, 2009).

The Elgin Marbles – Greece v. The British Museum

“From 1453 with the fall of Constantinople until the revolution in 1821 Greece [was]

under the rule of the Ottoman Turks who controlled the entire middle-east, and the Balkans as far

as the gates of Vienna” (Barrett). In 1799 Lord Elgin was appointed to the role of British

Ambassador to the Ottoman Empire (Stamatoudi, 1997). Lord Elgin was a known lover of

Ancient Greece; between the years of 1801 and 1816 Lord Elgin harvested numerous statues

from the Parthenon on the Acropolis in Athens. On July 11, 1816 the marble statues, then

known as the Elgin Marbles, were sold to the British Crown as Elgin was experiencing “financial

difficulties,” necessitating their sale (Stamatoudi, 1997). The Marbles were installed in the

internationally acclaimed British Museum in 1816, “for the Use of the Public” and have been

there ever since (Stamatoudi, 1997).

With the fall of the Ottoman Empire’s hold on Greece in 1821, and the “restoration of

democracy in Greece in 1975,” the Greek Minister of Culture went about establishing a

committee for the preservation of the Parthenon Acropolis. Preservation led to restoration and

on October 12, 1983 the first official request for repatriation was made to the British

government.

They are an integral part of a unique building symbolic to the Greek cultural heritage – it is now universally accepted that a work of art belongs to the cultural context in which (and for which) it was created, and – they were removed during a period of foreign occupation when the Greek people had no say in the matter.

(Stamatoudi, 1997)

This request was answered later that month with a formal decline on the “grounds that the

Marbles were [secured] by Lord Elgin ‘as the result of a transaction conducted with the

recognized legitimate authority at the time” (Stamatoudi, 1997).

Requests have continued from Greece for the return of the marbles and each has been met

with refusal. In 2000, Greece was willing to discuss unique alternatives to traditional

repatriation, a “partnership approach,” as long as the marbles were returned to Greece in time for

the 2004 Olympic Games to be held in Athens (BBC News, 2000). Despite insistences that the

“masterpiece needed to be reunified on the Acropolis in Athens, its original location,” the

Marbles remain in the British Museum (BBC News, 2000).

The international community has even sought to “quell the dispute,” noting that

regardless of the “long lapse of time since their removal, Greece’s continued demands for the

return on the Marbles indicates their importance to Greek culture” (Ounanian, 2008). However,

in the final days of 2002, “the world’s leading museums united for the first time to issue a

declaration on the importance and value of universal museums” (Knox, 2005-2006). This

Declaration would prove to strike a blow to the restitution movement “by declaring that

ownership rights of cultural artifacts acquired in the past should reflect the viewpoints and values

that existed at the time of the acquisition” (Knox, 2005-2006).

The future of the Elgin (Parthenon) Marbles is presently stuck in a stand-still. Both sides

have valid points that need to be considered when assessing the context of repatriation. In claims

involving recently looted or illegally exported items, action to recover items considered cultural

property have to be made in what is considered to be a ‘timely manner.’ As repatriation

continues, it will be important to determine whether the time that has passed and the authority of

the time of acquisition should hold measure in determining property rights to cultural property.

IV. The Laws and Conventions

Hague Convention of 1954

Convention for the Protection of Cultural Property in the Event of Armed Conflict

The Hague Convention for the Protection of Cultural Property in the Event of Armed

Conflict is the basic policy statement of the Contracting Parties to the Convention. The basic

principles of the Hague Convention are that the Contracting Parties recognize that cultural

property has suffered grave damage during recent conflicts and are convinced that damage to

cultural property belonging to any people, means damage to the cultural heritage of all mankind;

that preservation of cultural heritage is of great importance, yet such protection cannot be

effective unless both national and international measures are taken with the determination to take

all possible steps to protect cultural property, including but not limited to monuments,

architecture, art or history; archaeological sites; works of art; manuscripts, books, scientific or

literature collections, museums, libraries and archives. The protection, safeguarding, and

respect for cultural property means, to put a stop to any form of theft, pillage, misappropriation

or destruction, during occupation or military conflict, and promotes the use of distinctive

markings to identify cultural property and other special protective measures like the

establishment of refuges where such cultural property will not likely be exposed to the conflict.

Regulations for the Execution of the Convention for the Protection of Cultural Property in the Event of Armed Conflict

The regulations provide the “how-to” for the execution of the Convention including a list

of persons eligible for appointment as Commissioner General, the appointment of a

Commissioner General, appointment of delegates and the roles and functions of the delegates

and the Commissioner General, payment of expenses, registration of property under special

protection, and transportation and marking of property under special protection.

2nd Protocol, 1999

The 2nd Protocol to the Convention reaffirms and supplements the goals and methods of

the Convention. The Second Protocol is not an amendment to the main Convention or its First

Protocol, but rather supplements it. It is a separate treaty that must be ratified by State Parties

that choose to do so. However, a state cannot become a party to the Second Protocol unless it has

ratified the main Convention. Moreover, the Protocol only applies to States that have ratified it

(Second Protocol, 1999).

The 2nd Protocol provides more detail and precision than the main Convention and its

First Protocol regarding actions that State Parties must take during both peacetime and armed

conflict. Id. It further spells out that a Party to the Convention is bound to the protocol in time of

conflict, even if opposing party in conflict is not a Party to the Convention. Art.3.2 (Second

Protocol, 1999).

Hostile actions against cultural property only permitted when that cultural property has,

by its function, been made into a military objective; and there is no feasible alternative available

to obtain a similar military advantage to that offered by directing an act of hostility against that

objective. Art.6a(i)(ii) (Second Protocol, 1999).

Articles 10-14, creates a new category of ‘Enhanced Protection’ for the most important

sites, monuments and institutions, whose protection must be publicized in advance. The most

substantial provisions of the Second Protocol, however, are those identified in Article 15, where five

explicit offences of serious violations of the Protocol are defined. They are:

a. making cultural property under enhanced protection the object of attack;

b. using cultural property under enhanced protection or its immediate surroundings

in support of military action;

c. extensive destruction or appropriation of cultural property protected under the

Convention and this Protocol;

d. making cultural property protected under the Convention and this Protocol the

object of attack;

e. theft, pillage or misappropriation of, or acts of vandalism directed against cultural

property protected under the Convention.

Art.15.2 states, using the mandatory “shall,” that (e)ach Party shall adopt such measures as may

be necessary to establish as criminal offences under its domestic law the offences set forth in this

Article and to make such offences punishable by appropriate penalties (Second Protocol, 1999).

When doing so, Parties shall comply with general principles of law and international law,

including the rules extending individual criminal responsibility to persons other than those who

directly commit the act (Second Protocol, 1999).

Having created the criminal provision, Art.16-18 provides the mechanisms for

enforcement including: jurisdiction, authority for prosecution and extradition. Signatories to the

Protocol will be required to adopt implementing legislation in order to comply with the

obligations inherent in the ratification of the Second Protocol (Article 16). The enforcement

provisions add teeth to the 2nd Protocol that is absent in the Convention itself and the 1st Protocol.

The remaining provisions of the 2nd Protocol are primarily concerned with issues of governance.

UNESCO Convention 1970

Convention on the Means of Prohibiting and Preventing the Illicit Import – Export and Transfer

of Ownership of Cultural Property 1970

The General Conference of the United Nations Educational, Scientific and Cultural

Organization, meeting in Paris from 12 October to 14 November 1970, at its sixteenth session¸

adopted this Convention November 14, 1970 (UNESCO, 1970). The goals of this convention

include regulation of the international market in cultural property so as to protect the original

contexts of these objects and provide a mechanism for recognition of different countries’ import

and export controls with respect to cultural objects. United States Senate gave its unanimous

consent to the ratification of the Convention. However, Congress indicated that the Convention

would not have any domestic legal effect until implementing legislation was enacted. This

legislation, the Convention on Cultural Property Implementation Act (CPIA or CCPIA), did not

come into effect until 1983 (UNESCO, 1970).

Art. 1 defines what constitutes cultural property; Art. 2 recognizes that illicit import,

export and transfer of cultural property is one of the main causes of the impoverishment of the

cultural history of the country of origin, and the signees undertake to oppose and stop such

practices and make necessary reparations (UNESCO, 1970). Article 3 makes import, export or

transfer of cultural property contrary to the convention illegal (UNESCO, 1970). However, the

United States adopted only two provisions of the UNESCO Convention, Article 7(b)2, which

provides that a party to the Convention, at the request of the State Party of origin, to take

appropriate steps to recover and return any such cultural property imported after the entry into

force of this Convention in both States concerned, provided, however, that the requesting State

shall pay just compensation to an innocent purchaser or to a person who has valid title to that

property (UNESCO, 1970). Additionally, Article 9 which states that any State Party to this

Convention whose cultural patrimony is in jeopardy from pillage of archaeological or

ethnological materials may call upon other States Parties who are affected (UNESCO, 1970).

The States Parties to this Convention undertake, in these circumstances, to participate in a

concerted international effort to determine and to carry out the necessary concrete measures,

including the control of exports and imports to prevent irremediable injury to the cultural

heritage of the requesting State (UNESCO, 1970). 

UNIDROIT Convention 1995

Unidroit Convention on Stolen or Illegally Exported Cultural Objects (1995)

The UNIDROIT Convention addresses the specific problem of theft and the illicit

trafficking of cultural property. The State Parties to the Convention assembled in Rome at the

invitation of the Government of the Italian Republic from 7 to 24 June 1995 for a Diplomatic

Conference for the adoption of the draft UNIDROIT Convention on the International Return of

Stolen or Illegally Exported Cultural Objects (UNIDROIT, 1995). The document defines nature

of the objects covered and includes provisions for the restitution of stolen property. The

Convention also calls for the return of illegally exported cultural objects and outlines the

circumstances under which such property shall be ordered returned.

Requests for returns of cultural property shall be brought within three years of the

requesting State learning of the location and/or identity of the possessor of the stolen or illicitly

exported object, or within fifty years of the actual excavation (UNIDROIT, 1995). The

Convention requires that fair and reasonable compensation to be paid in those circumstances

where the possessor can show ignorance of the crime, and demonstrate his due diligence at the

time of the purchase. Whenever possible, payment should be sought from the party who illegally

transferred the property (UNIDROIT, 1995). The possessor can, with the agreement of the State

requesting return, choose to retain the object instead of compensation. A special provision with

regard to the return of cultural property of tribal and indigenous groups holds that the 50-year

limit does not apply to objects that were made by tribal members or are used for traditional or

ritual purposes by the community (UNIDROIT, 1995).

Cultural Property Implementation Act

The Convention on Cultural Property Implementation Act (“CPIA”), 19 U.S.C. §§ 2601–

2613, provides a mechanism by which foreign countries can request that the United States enact

import restrictions on certain articles of cultural significance to prevent their looting and illegal

sale. Ancient Coin Collectors Guild v. U.S. Customs & Border Prot., Dep't of Homeland Sec.,

698 F.3d 171, 174 (4th Cir. 2012). In the fall of 1970, the United Nations Educational, Scientific,

and Cultural Organization (“UNESCO”) held a conference in Paris where its member states

fashioned an international system to protect articles of cultural significance from “the dangers of

theft, clandestine excavation, and illicit export.” Convention on the Means of Prohibiting and

Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property pmbl., Nov.

14, 1970, 823 U.N.T.S. 231. The product of this conference was the Convention on the Means of

Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural

Property (the “Convention”). Id. Pursuant to Article 9 of the Convention, a “State Party” can

request that other signatories take steps to protect the requesting state's cultural property from

theft and illicit export, such steps to include import and/or export controls. Id. art. 9. The

Convention defines the term “cultural property” to include an array of items “of importance for

archaeology, pre-history, history, literature, art or science.” Ancient Coin Collectors Guild v.

U.S. Customs & Border Prot., Dep't of Homeland Sec., 698 F.3d at 175 citing article 1 of the

“Convention.”

CPIA allows the U.S. government to place import restrictions on designated articles of

cultural property at the request of another Convention party. The process commences when a

Convention party submits a written request to the United States seeking assistance in protecting

its cultural property. Upon receipt of the request, the President must “publish notification of the

request ... in the Federal Register” and submit the request and supporting statements to the

Cultural Property Advisory Committee (“CPAC”). CPAC is an eleven-member committee

appointed by the President that includes representatives of museums; “experts in the fields of

archaeology, anthropology, ethnology, or related areas”; “experts in the international sale of

archaeological, ethnological, and other cultural property”; and representatives “of the general

public.” Id., citations omitted.

If an article is covered by CPIA import restrictions, it may not be brought into the United

States unless (1) it is accompanied by formal documentation certifying that it was lawfully

exported from the country that has requested the import restrictions; (2) there is “satisfactory

evidence” that the article was exported from the State Party at least ten years before it arrived in

the United States and the importer owned it for less than one year before it arrived in the United

States, or (3) there is “satisfactory evidence” that the article was exported from the State Party

before the import restrictions took effect. “Satisfactory evidence” has been defined to include a

“declaration under oath by the importer, or the person for whose account the material is

imported, stating that, to the best of his knowledge,” the article is eligible for import under one of

the aforementioned exemptions. If the date of export from the State Party is not known, a

statement expressing “belief” that the article meets one of the exemptions may suffice. Id.

National Stolen Property Act – 1994

NATIONAL STOLEN PROPERTY ACT, U.S. Code Title 18--Crimes and Criminal Procedure:

Sections 2314 and 2315

Sec. 2314. Transportation of stolen forged or fraudulent goods, securities, moneys, State

tax stamps, or articles used in counterfeiting, with a value of $5,000 or more shall be punishable

Shall be punishable by fined or imprisoned not more than ten years, or both.

Sec. 2315. Sale or receipt of stolen goods, securities, moneys, or fraudulent State tax

stamps of the value of $5,000 or more, or pledges or accepts as security for a loan any goods,

wares, or merchandise, or securities, of the value of $500 or more, which have crossed a State or

United States boundary after being stolen, unlawfully converted, or taken, Shall be punishable by

fine or imprisoned not more than ten years, or both.

Law of Salvage and Law of Finds

Historically, courts have applied the maritime law of salvage when ships or their cargo

have been recovered from the bottom of the sea by those other than their owners. Under this law,

the original owners still retain their ownership interests in such property, although the salvors are

entitled to a very liberal salvage award. Such awards often exceed the value of the services

rendered, and if no owner should come forward to claim the property, the salvor is normally

awarded its total value. On salvage generally, see 3A M. Norris, Benedict on Admiralty: The Law

of Salvage (7th ed. rev. 1991). Columbus-Am. Discovery Grp. v. Atl. Mut. Ins. Co., 974 F.2d

450, 459-60 (4th Cir. 1992)

A related legal doctrine is the common law of finds, which expresses “the ancient and

honorable principle of ‘finders, keepers.’” Martha's Vineyard Scuba Headquarters, Inc. v.

Unidentified, Wrecked & Abandoned Steam Vessel, 833 F.2d 1059, 1065 (1st Cir. 1987)

Traditionally, the law of finds was applied only to maritime property which had never been

owned by anybody, such as ambergris, whales, and fish. 3A Benedict on Admiralty § 158, at 11-

15. A relatively recent trend in the law, though, has seen the law of finds applied to long lost and

abandoned shipwrecks. Id. § 158, at 11-16 to 11-18.

Columbus-Am. Discovery Grp. v. Atl. Mut. Ins. Co., (the full style of the case listing all

involved parties is found at the end of this section) was a legal brawl involving self-styled

“finders” from Ohio, British and American insurance underwriters, an heir to the Miller Brewing

fortune, a Texas oil millionaire, an Ivy League university, and an Order of Catholic monks, with

the prize being up to one billion dollars in gold.

The gold was deposited on the ocean floor, 8,000 feet below the surface and 160 miles

off the South Carolina coast, when the S.S. CENTRAL AMERICA sank in a hurricane on

September 12, 1857. The precise whereabouts of the wreck remained unknown until 1988, when

it was located by the Columbus-America Discovery Group (“Columbus-America”), which then

began recovering the gold. In 1990, Columbus-America moved the federal district court to have

itself declared the owner of the treasure. To oppose Columbus-America in court came British

and American insurers who had originally underwritten the gold for its ocean voyage, and then

had to pay off over a million dollars in claims upon the disaster. In addition, there were three

Intervenors contending Columbus-America had used their computerized “treasure map” to locate

the gold.

After a ten-day trial, the lower Court awarded Columbus-America the golden treasure in

its entirety, 742 F.Supp. 1327. It found that the underwriters had previously abandoned their

ownership interests in the gold by deliberately destroying certain documentation. As for the

intervenors, the Court held that there was no evidence showing that Columbus-America used

their information in any way in locating the wreck.

On appeal, the Fourth Circuit found the evidence was not sufficient to show that the

underwriters affirmatively abandoned their interests in the gold, and that the district court abused

its discretion by not affording the intervenors sufficient time for discovery. The district court’s

judgment was reversed and the case remanded for further proceedings.

On remand, and the following appeal, the Fourth Circuit upheld the district court’s

findings, affirming the district court's judgment in nearly all respects: that sufficient evidence

supported the court's finding that Columbus–America did not misappropriate the Intervenor’s

CONRAD data; agreeing with the district court that, in return for recovering the gold aboard the

CENTRAL AMERICA, Columbus–America deserved a ninety percent salvage award; and that

the court correctly decided that the gold should be marketed as a whole, with Columbus–

America designated as the marketing authority.

However, the appellate court held that Columbus–America’s ninety percent salvage

award did not automatically mean that the underwriters get the remaining ten percent, and

instructed the district court, on remand again, to consider the evidence and decide whether each

underwriter actually owns the portion of the gold that it claims. Columbus-Am. Discovery Grp.

v. Atl. Mut. Ins. Co., 56 F.3d 556, 562 (4th Cir. 1995).

It seems in the shipwreck scenario it is the monetary spoils that are the motivating factor

rather than the cultural property aspects, although some shipwrecks can contain significant

artifacts of cultural significance.

V. The Precedents Established by the Notable Instances and Current Popular

Interpretations

Interpretations of laws are often influenced by the interpretation of previous rulings.

With every case or interaction a precedent is set, each of the aforementioned notable instances

discussed in this study provide precedents worthy of study. By looking at precedents one can

estimate future outcomes of similar disputes.

The private resolution of the dispute between Cambodia’s cultural experts and The New

York Metropolitan Museum of Art evidenced that rules can be upheld by reasonable entities

without the presence of courts. With logical though, consideration, and respectful treatment

between disputers, evidence can be exchanged cordially and resolutions that are mutually

beneficial can be reached. Cambodia and the Met have come to develop a healthy,

consultationary relationship. With the return of the twin Kneeling Attendants, the Met received

ten “sculptural works by the contemporary Cambodian artist Sopheap Pich” and have established

agreements for future loans and temporary exhibits to be displayed in the Met (Bulmental,

Mashberg, 2013).

In the case of the Cyprus mosaics – Autocephalous Greek-Orthodox Church of Cyprus

and The Republic of Cyprus V. Goldberg and Feldman Fine Arts, Inc., and Peg Goldberg –

different precedents were set in regards to cultural property and an entities claim to such. Firstly,

this case established the reality that cultural property policies are not limited to institutions such

as museums, but that their application is wholly likely to face individuals and private entities,

such as auction houses or art dealers.

Another precedent established during the course of the Cyprus mosaics’ saga was the

right, and even obligation, of individuals distantly involved with an item of suspicious

provenance to report their suppositions. Dr. Marion True was instrumental in the ultimate return

of the mosaics to Cyprus (Autocephalous, 1999).

The precedent of an individual’s susceptibility to cultural property policies is further seen

in United States V. Eighteenth Century Peruvian Oil on Canvas Painting of Doble Trinidad. This

case established another, more widely perceived, governmentally empowering precedent: the

ability of one nation to facilitate repatriation on behalf of another. When the United States sized

the illegally imported Peruvian paintings, and initiated their repatriation to Bolivia, a sense of

international responsibility is clearly communicated. A nation that would be the recipient of

repatriation does not have to initiate the claims in order to secure the return of cultural property.

None of the previously established precedents seem to touch the Greek-British dispute

over the Elgin (Parthenon) Marbles. While using the most basic logic, it would make sense to

return an artifact such as the Elgin Marbles to Greece – they were removed from the country’s

most iconic architectural structure; however, the passage of time has created a perceptible ‘grey-

area’ within the scope of the interpretation of the rights to the masterworks. Greece and the

United Kingdom have collided in the ‘unstoppable force – meets – unmovable object’ quandary.

The two governments have shown that two stubborn, well positioned entities can ultimately

come to a stalemate into which UNESCO has difficulty penetrating. Finally Greece and the

United Kingdom, in part as a result of their own modern cultures – the UK as an aggressive

collector and Greece, an aggressive seeker of repatriation of Greek artifacts world-wide – are

resistant to compromise. Even the beloved, internationally acclaimed, proponent for repatriation,

Amal Clooney was snubbed by Greek culturists for suggesting the possibility of a trade other

pieces-de-art, in order to help facilitate British cooperation.

Despite the ongoing dispute over the Elgin (Parthenon) Marbles the popular view of

cultural property is in favor of repatriation. When disputes are resolved privately, there is often

the development of a kinship – a positive working relationship – that clears the path for mutual

benefits such as collection supplementation, long term loans, revolving collections, and future

collaboration. Alternatively, when disputes require legal intervention, barring cases of salvage,

repatriation is the most frequently seen outcome.

VI. The Susceptible and Initiative Parties

During the course of this study I have found that museums are the entities the most

susceptible to facing claims under cultural property policy, as well as demands for repatriation.

While auction houses, art dealers, and individuals can be faced with claims, it is the public nature

of displays at museums that make them the most vulnerable. Claims are most often initiated by

national governments; however it is often a ‘whistle-blowing’ individual that alerts either those

governmental entities or international committees like UNESCO of items of cultural property

that have suspicious provenance.

VII. Conclusion – What the Future Holds

The reality is that despite the efforts of the Hague Convention of 1954, the Second

Protocol of 1999, the UNESCO Convention, the UNIDROIT Convention, and the myriad of

legal acts, both national and international; as long as there is money to be had in the exchange of

art and antiquity; as long as there is war, social upheaval, and genocide there will continue to be

lootings, illegal harvestment, and back market exchange of cultural property. It is with

international diligence and clear legislature that those artifacts can be returned.

In assessing the current world environment I anticipate a significant need of clear

legislature. I suspect future disputes – for middle-eastern art and reliquary in particular – will

revolve less around recently looted artifacts, and more around repatriation of works that those

nations were originally amicable with belonging in foreign collections. The recent acts of

cultural and racial genocide enacted by ISIS have led to the systematic obliteration of cultural

property. When (if) the nations presently wrought by war stabilize and heal, they will being

seeking out cultural property to replace that destroyed in conflict.

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