Protecting Cultural Property Through Provenance
| Jurisdiction | United States,Federal |
| Citation | Vol. 32 No. 04 |
| Publication year | 2009 |
I. Introduction
Almost 1,500 years ago, a large mosaic was created in the apse of the Church of the Panagia Kanakaria in Lythrankomi, Cyprus.(fn1) The mosaic, depicting Jesus, the Virgin Mary, and two archangels, was surrounded by a fresco of the twelve apostles.(fn2) As is traditional in the Greek Orthodox Church, the congregation in this small north Cypriot town came to revere the mosaic as a holy relic.(fn3) Unfortunately, the priests and congregation of the Panagia Kanakaria Church were forced to flee Lythrankomi in 1976 by the occupying Turkish army.(fn4) Sometime in the following twelve years, the sacred mosaic was torn from its place in the church and smashed into four separate pieces.(fn5) It made its way into an Indiana art gallery where it was later discovered by a representative of the legitimate government of Cyprus.(fn6)
Though this sounds like a fantastic story of international intrigue, it is one of many that make up the third most profitable criminal market in the world: the black market in art and antiquities.(fn7) The mosaic falls into a class of objects called cultural property-tangible objects of a culture's unique heritage and traditions. It includes all "property which, on religious or secular grounds, is ... of importance for archaeology, prehistory, history, literature, art or science."(fn8)
Although the black market crosses national boundaries,(fn9) U.S. law is of great importance because the United States is a major consumer of cultural property.(fn10) While policymakers and courts both recognize the importance of the United States in this black market,(fn11) laws are strikingly inconsistent in their treatment of cultural property.(fn12) Once a piece of cultural property reaches the United States, its legal treatment will depend on the diplomatic relationship between the U.S. and the object's country of origin,(fn13) the particular type of object,(fn14) the scienter of the current possessor of the piece,(fn15) and other factors. This patchwork of regulation leads to innocent purchasers losing valuable objects because there is no predictable way to evaluate title to cultural property.(fn16)
The ancient relics from the Panagia Kanakaria Church were returned to the Church of Cyprus thanks to the Cypriot government's extraordinary efforts.(fn17) However, similar cultural property is not always returned.(fn18) This Comment recommends that Congress take action to bring consistency to the treatment of cultural property in two ways. First, ownership disputes should be settled based on the quality of provenance between competing claimants, a system similar to land title registration. Provenance is the history of a piece of cultural property that shows where it came from and where it has been.(fn19) Second, to ensure provenance is a complete guide to title all cultural objects, both illegally exported and stolen cultural property should receive the same treatment.
Part II of this Comment discusses the history of cultural property regulation. Next, Part III addresses the current state of the law protecting cultural objects within the United States and explains the inconsistencies created under the current statutory scheme. Finally, Part IV proposes a solution that will protect interested parties.
II. A Brief History of the Regulation of Cultural Property
Theft, and theft of cultural property, has gone on for all of history.(fn20) In antiquity, pillage of cultural property went hand-in-hand with the conquest of new territory.(fn21) Indeed, empires like Rome reaped huge bounties from defeated peoples and viewed the taking of their art as a legiti- mate aspect of war.(fn22) That practice continued unabated through the eighteenth century.(fn23)
While the plundering of cultural property from conquered nations faded almost completely in the eighteenth century, Napoleon enthusiastically resumed the practice in the nineteenth.(fn24) The emperor filled his Musee Napoleon first with objects taken from the First and Second Estates,(fn25) and later with objects from the defeated cultures of Europe.(fn26) Napoleon's final defeat at Waterloo brought a temporary end to the appropriation of cultural property as spoils of war, and the victors at Waterloo respected the integrity of Europe's cultural heritage with certain notable exceptions.(fn27) At the end of the Napoleonic Wars, cultural nationalism rationalized the allies' repatriation of cultural property taken by Napoleon.(fn28)
Cultural nationalism is the idea that objects which are made by and for a particular people, and which are identified with that people, belong to and with them.(fn29) Although it represented an improvement from the previous might-makes-right approach to cultural property, cultural nationalism is subject to the same distortions because it too is based in nationalism.(fn30) Condemnation of takings in wartime became universal among great thinkers in Europe and the United States,(fn31) with this new idealism focusing on protecting cultural objects for the glory of the cultures that created them.(fn32) The allies at Waterloo promoted this new view in an attempt to protect the national prestige of the previously defeated nations by halting the appropriation of cultural property as an aspect of conquest.(fn33)
Cultural nationalism shifted from a nascent movement to a full-fledged goal of the allied victors of World War I. The collective treaties ending the Great War stipulated that cultural objects disbursed by time or by war should be repatriated.(fn34) Additionally, preference in repatriation was given to the country that controlled the region to which a cultural object's significance belonged.(fn35) The treaties ending World War I had significant sections dedicated to the return of cultural property acquired under a wide variety of circumstances.(fn36)
The darker side of cultural nationalism surfaced during World War II, and the pattern of Napoleon repeated itself.(fn37) The Third Reich used the conquest of "subhumans"(fn38) as an opportunity for acquiring cultural property. Hitler was famously interested in art and was himself a failed artist.(fn39) The German government saw itself as protecting the art of other countries, selectively confiscating pieces that fit Hitler's political ideals and selling or ignoring the rest.(fn40) Modern art was most notable among the "degenerate" forms Hitler directed be destroyed.(fn41)
The end to World War II marked the beginning of the current era in the protection of cultural property, one based on cultural internationalism, or the idea that cultural objects contribute to the collective culture of mankind and so equally belong to everyone.(fn42) This new ideal was expressed in the text of the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954 Hague Convention)(fn43) and the founding of the United Nations Educational, Scientific, and Cultural Organization (UNESCO).(fn44) The 1954 Hague Convention ratified what had been the norm for centuries in western warfare, violated only by Napoleon and Hitler-that destruction of cultural property during wartime should be avoided when militarily possible and that the pillage of cultural property was not a legitimate component of war.(fn45) The 1954 Convention directs for the protection of cultural property in the signatory parties' own territory,(fn46) for cooperation with local authorities in protecting cultural property in the occupied territory,(fn47) and for avoiding the destruction of, or damage to, cultural property as a result of military action.(fn48) Seizing cultural objects as spoils of war is also prohibited.(fn49)
A peacetime complement to the 1954 Hague Convention, the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (UNESCO Convention), was completed in 1970.(fn50) The UNESCO Convention dealt with private acts of cultural property theft, directing implementing nations to prevent the importation of cultural property taken illicitly from other signatory nations.(fn51) The UNESCO Convention required signatory nations to pass laws preventing the illegal trade of cultural property,(fn52) regulating the legal trade of cultural property with signatory nations,(fn53) and protecting the cultural property of signatory nations whose property was in danger of pillage.(fn54) The UNESCO Convention also outlawed the surrender of cultural property as a consequence of war.(fn55)
These treaties make cultural property theft a clear violation of international law. But the world has changed, and countries are no longer the primary thieves of cultural property. Looters, and those individuals to whom they sell, are now the chief cause of cultural theft. For example, during the Invasion of Iraq in 2003, it was not the invading power, the United States, that looted cultural property throughout the country, but the Iraqi people themselves: professional thieves who knew exactly what was worth taking and how to get it.(fn56) Facing this new, insidious black market for cultural property demands a new legislative response in the United States that recognizes individuals, not states, as the primary actors in cultural property theft.
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