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Looted Cultural Objects, Elena Baylis

Articles

In the United States, Europe, and elsewhere, museums are in possession of cultural objects that were unethically taken from their countries and communities of origin under the auspices of colonialism. For many years, the art world considered such holdings unexceptional. Now, a longstanding movement to decolonize museums is gaining momentum, and some museums are reconsidering their collections. Presently, whether to return such looted foreign cultural objects is typically a voluntary choice for individual museums to make, not a legal obligation. Modern treaties and statutes protecting cultural property apply only prospectively, to items stolen or illegally exported after their effective dates. …

The International Restitution Of Classical Antiquity: Creating Uniformity Within Museum Restitution Policy, Jacob Armentrout

Senior Theses and Projects

This thesis will explore the scope of the restitution debate for Greek and Italian classical antiquities and how it has evolved over the past 70 years. Chapter 1 will focus on the scholarly works of well-known figures within the restitution debate, including John Henry Merryman, James (Jim) Cuno, and Patty Gerstenblith. Their work is crucial in developing the terminology that defines the debate and also for understanding their opinions on both sides of the debate. Chapter 2 will center on claims to cultural property and restitution efforts that have been made at both the international and national level. The three …

Criminal Liability For The Destruction Of Cultural Property: The Prosecutor V. Bosco Ntaganda, Emma A. O'Connell

DePaul Journal for Social Justice

No abstract provided.

Should They Stay Or Should They Go? African Cultural Goods In France’S Public Domain, Between Inalienability, Transfers, And Circulations, Clara Cassan

Fordham Intellectual Property, Media and Entertainment Law Journal

France’s colonialism over Subsharan Africa until the 1960s has had persistant psychological and material consequences. Amongst them is the lingering presence of a significant amount of African objects in French museum collections. In the last five years, Subsaharan African countries have reiterated their desire to receive parts of these collections. Through their “restitution requests,” they identify themselves as the objects’ legitimate owners and claim to have been robbed of their cultural property during colonialism.

The exact conditions under which each Subsaharan artifact arrived on French grounds—whether through theft, donations, sales, or looting—remain unsettled. Even where thefts can be proven, they …

Keeping The Barbarians At The Gates: The Promise Of The Unesco And Unidroit Conventions For Developing Countries, Michael P. Goodyear

Michigan Journal of International Law

The illicit trade in cultural property is a global phenomenon, powered by criminal networks and smuggling trains that sacrifice local culture for the black market of the art world. Headlines featuring the Islamic State’s lucrative exchange in stolen cultural property, among other incidents, have raised the profile of the illicit cultural property trade on the global stage. Developing countries, as the most prominent source countries of cultural property, are particularly at risk. Existing scholarship has searched for a solution to this crisis, suggesting a new international treaty to protect cultural property or recommending the utilization of adjacent legal fields. However, …

Legal Frameworks For Protecting Cultural Heritage In Conflict Zones, Marcie M. Muscat

Dissertations and Theses

Cultural heritage has always been at risk during times of war. UNESCO first endeavored to address the issue shortly after World War II, in 1954, when it passed the first of three signature conventions to protect against the damage, destruction, and pillage of cultural property in times of armed conflict. Lacunae and other deficiencies in their frameworks, however, rendered these conventions difficult to enforce and largely ineffectual. This study offers an assessment of the strengths and limitations of the UNESCO system of cultural-heritage protection, with a particular focus on the 1954 Hague Convention. It is argued that, by superseding certain …

Copla: A Transnational Criminal Court For Latin America & The Caribbean, Robert Currie, Jacob Leon

Articles, Book Chapters, & Popular Press

States in the Latin American and Caribbean regions have long called for the creation of an independent, international court to prosecute members of transnational organized crime gangs. These organizations not only profit from the illicit traffic in drugs, people and cultural property, but are able to corrupt and undermine the domestic legal systems and judiciaries of the affected states. This paper examines the current proposal for the creation of the "Latin American and Caribbean Criminal Court Against Transnational Organized Crime" (COPLA). It reviews the rationale for creating such a court, examines the main pillars of the current proposal, and suggests …

International Hurdles In Nazi-Era And Russian Revolution Cultural Property Cases, Jennifer Anglim Kreder

Case Western Reserve Journal of International Law

The FSIA, however, did not do away with the common law act of state doctrine, which is another hurdle plaintiffs must overcome. Under the act of state doctrine, U.S. courts decline to hear suits challenging the acts of another sovereign in its own territory. This doctrine, too, is grounded in flexible principles of international comity. This essay discusses both the FSIA and the act of state doctrine in the context of cases seeking to recover art and cultural property taken during the Nazi-era and Russian Revolution after providing necessary historical background.

Blood Antiquities: Addressing A Culture Of Impunity In The Antiquities Market, Paul R. Williams, Christin Coster

Case Western Reserve Journal of International Law

For decades, parties to conflicts have used the cover of war to destroy and loot cultural property and antiquities for financial gain and symbolic victory. The "blood antiquities" excavated in conflict areas and sold mostly in western markets fuel not only continued conflict, but also (as in cases such as Syria and Iraq) terrorism that can reach around the world. The culture of impunity for both buyers and sellers of antiquities allows the blood-antiquities trade to thrive. A robust international legal framework does exist to ensure accountability for the destruction of cultural heritage. Because looting is a major cause of …

Individual Criminal Responsibility For The Destruction Of Religious And Historic Buildings: The Al Mahdi Case, Milena Sterio

Case Western Reserve Journal of International Law

Ahmad Al Faqi Al Mahdi, also known as Abon Tourab, was a member of the radical Islamic group Ansar Eddine, serving as one of four commanders during its brutal occupation of Timbuktu in 2012. The International Criminal Court (ICC) indicted Al Mahdi on several charges of war crimes, for intentional attacks against ten religious and historic buildings and monuments. All the buildings which Al Mahdi was charged with attacking had been under UNESCO protection, and most had been listed as world heritage sites. The case against Al Mahdi at the ICC unfolded relatively quickly and efficiently, from the official Malian …

South-South Cooperation On The Return Of Cultural Property: The Case Of South America, Alice Lopes Fabris

Case Western Reserve Journal of International Law

This article challenges the notion that “south” countries fail to protect cultural property. Instead, it demonstrates that south countries have strong policies for the return of cultural property and against trafficking. This article will first analyze the international and regional policy frameworks, as well as bilateral agreements regarding the protection of cultural property against illicit trafficking. The second part of this article examines actions taken by the South American States for the return of cultural property. Finally, this article presents case studies of cultural property restituted among South American countries.

Al Mahdi Has Been Convicted Of A Crime He Did Not Commit, William Schabas

Case Western Reserve Journal of International Law

A closer look at the Rome Statute suggests that Al Mahdi did not commit the crime for which he was convicted.

How New York Investors Financed The Looting Of Syria, Ukraine, And Iraq: The Need To Increase Civil Liabilities For "Current Possessors" Of Stolen Antiquities In The 21st Century, Lukas Padegimas

Global Business Law Review

This note argues that the U.S. should pass its own self-policing legislation that will make it less enticing for thieves to try to sell stolen antiquities to the U.S. market. Our world heritage is under threat from undeterred looting, which results in antiquities vanishing from museum storerooms and archeological sites before ending up in the storerooms of investors. Currently, source nations that attempt to have stolen antiquities returned are deterred by the high legal costs involved. As the biggest market for stolen cultural property, states within the U.S. should amend current replevin laws so that the possessors of stolen cultural …

Protecting Cultural Property In Non-International Armed Conflicts: Syria And Iraq, Louise Arimatsu, Mohbuba Choudhury

International Law Studies

The deliberate destruction by ISIS of religious and cultural property in both Syria and Iraq sparked widespread international condemnation and was described by UNESCO’s Director-General as constituting war crimes. Regrettably, the damage to and destruction of such property has become an all too common feature of the conflicts that have engulfed both States. The authors examine the legal obligations that apply to the parties in non-international armed conflict and the consequences of non-compliance. In light of the scale of the human suffering engendered by the conflicts, the authors first ask why international law protects such property in armed conflict.

Don’T Get Slammed Into Nefer Nefer Land: Complaints In The Civil Forfeiture Of Cultural Property, Victoria A. Russell

Pace Intellectual Property, Sports & Entertainment Law Forum

The Saint Louis Art Museum, known as SLAM, acquired the mask of Ka-Nefer-Nefer in 1998. Eight years later, the Egyptian Supreme Council of Antiquities called for its return on the grounds that it had been stolen from the Egyptian Museum in Cairo. SLAM refused. In 2011, the case went before the United States District Court for the Eastern District of Missouri to determine the ownership of the mask. Perhaps to the surprise of many, the court decided that the mask belongs in Saint Louis.

This Article will explain how this case was properly decided, albeit on a legal technicality. It …

Beyond Wealth: Stories Of Art, War, And Greed, Mary Ellen O'Connell

Mary Ellen O'Connell

The article tells three stories of great art and priceless antiquities: one about early Christian mosaics from Cyprus, another about five paintings by the Viennese master, Gustav Klimt, and the third about an ancient statute of a Sumerian king from Iraq. All three stories discuss the international law protecting cultural heritage in time of war and occupation. They all tell of individuals pursuing extraordinary profits from the sale of the objects despite the international law that, properly applied, should have protected them from damage and kept them all in places of public display.The article also tells how in each case …

Agenda: Free, Prior And Informed Consent: Pathways For A New Millennium, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment, University Of Colorado Boulder. School Of Law. American Indian Law Program

Free, Prior and Informed Consent: Pathways for a New Millennium (November 1)

Presented by the University of Colorado's American Indian Law Program and the Getches-Wilkinson Center for Natural Resources, Energy & the Environment.

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), along with treaties, instruments, and decisions of international law, recognizes that indigenous peoples have the right to give "free, prior, and informed consent" to legislation and development affecting their lands, natural resources, and other interests, and to receive remedies for losses of property taken without such consent. With approximately 150 nations, including the United States, endorsing the UNDRIP, this requirement gives rise to emerging standards, obligations, and opportunities …

Goading A Reluctant Dinosaur: Mutual Recognition Agreements As A Policy Response To The Misappropriation Of Foreign Traditional Knowledge In The United States, Paul Kuruk

Pepperdine Law Review

No abstract provided.

Locating The International Interest In Intranational Cultural Property Disputes, Joseph P. Fishman

Vanderbilt Law School Faculty Publications

This Article considers the extent to which there may be an international interest in how intranational disputes over cultural property are settled. Drawing on the norms underlying recent global scrutiny of states’ destruction of cultural objects located within their own territory, I identify two factors that may justify internationalizing otherwise domestic conflicts over cultural property: discriminatory intent and harm to cultural diversity. I argue that where neither of these concerns is implicated, the international community should pursue a policy of non-intervention, both because local authorities are likely to be more competent adjudicators and because eliciting a global referendum on cultural …

Protecting Antiquities And Saving The Universal Museum: A Necessary Compromise Between The Conflicting Ideologies Of Cultural Property, Nicole Klug

Case Western Reserve Journal of International Law

No abstract provided.

Reconciling Policy And Equity: The Ability Of The Internal Revenue Code To Resolve Disputes Regarding Nazi-Looted Art, Joseph F. Sawka

University of Miami International and Comparative Law Review

No abstract provided.

Protecting Cultural Property Through Provenance, Christopher D. Cutting

Seattle University Law Review

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. 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, …

In Defense Of Property, Kristen A. Carpenter, Sonia K. Katyal, Angela R. Riley

Publications

This Article responds to an emerging view, in scholarship and popular society, that it is normatively undesirable to employ property law as a means of protecting indigenous cultural heritage. Recent critiques suggest that propertizing culture impedes the free flow of ideas, speech, and perhaps culture itself. In our view, these critiques arise largely because commentators associate "property" with a narrow model of individual ownership that reflects neither the substance of indigenous cultural property claims nor major theoretical developments in the broader field of property law. Thus, departing from the individual rights paradigm, our Article situates indigenous cultural property claims, particularly …

Terror Victims At The Museum Gates: Testing The Commercial Activity Exception Under The Foreign Sovereign Immunities Act, Alicia M. Hilton

Villanova Law Review

No abstract provided.

Beyond Wealth: Stories Of Art, War, And Greed, Mary Ellen O'Connell

Journal Articles

The article tells three stories of great art and priceless antiquities: one about early Christian mosaics from Cyprus, another about five paintings by the Viennese master, Gustav Klimt, and the third about an ancient statute of a Sumerian king from Iraq. All three stories discuss the international law protecting cultural heritage in time of war and occupation. They all tell of individuals pursuing extraordinary profits from the sale of the objects despite the international law that, properly applied, should have protected them from damage and kept them all in places of public display.

The article also tells how in each …

Common Cultural Property: The Search For Rights Of Protective Intervention, M. Catherine Vernon

Case Western Reserve Journal of International Law

No abstract provided.

Rolling Back History: The United Nations General Assembly And The Right To Cultural Property, Douglas N. Thomason

Case Western Reserve Journal of International Law

No abstract provided.

The Recovery Of Cultural Artifacts: The Legacy Of Our Archaeological Heritage, Mark F. Lindsay

Case Western Reserve Journal of International Law

No abstract provided.

The Continuing Development Of United States Policy Concerning The International Movement Of Cultural Property, Lawrence J. Persick

Penn State International Law Review

This comment will look first at why the illicit traffic of cultural property is an area of controversy and describe what competing interests are involved. Next, the actions that have been taken both on the international level and unilaterally by the United States to counter and possibly solve the problem will be examined. Finally, the still developing policy of the United States will be reviewed and evaluated.

Emerging United States Policy With Regard To The International Movement Of National Cultural Property, Cyd B. Wolf

Maryland Journal of International Law

No abstract provided.