It was an automobile accident on Italy\u27s Autostrada del Sole-the highway of the Sun-that led to the largest restitution, ever, of stolen antiquities from United States museums to the Republic of Italy

Roussin, Lucille A.

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THE TRADE IN ANTIQUITIES:HERITAGE FOR SALE?Lucille A. Roussin*REMARKSIt was an automobile accident on Italy's Autostrada del Sole-the highwayof the Sun-that led to the largest restitution, ever, of stolen antiquities fromUnited States museums to the Republic of Italy. The story is told in "TheMedici Conspiracy," a book published in 2006 that recounts the discovery ofa small notebook recording acquisition and sale of antiquities that led to a muchbroader investigation and the proof that some of the prized antiquities of theMetropolitan Museum of Art, the J. Paul Getty Museum, the Boston Museumof Fine Arts, and the Princeton Museum were looted.' The investigation intoother museum collections continues. Italy's success led the Greek governmentto go on its own campaign to recover antiquities that they could prove had beenstolen. This was followed by the voluntary restitution of eight antiquities fromthe Royal-Athena Gallery in New York.2 Just last January, Shelby White, whoboasts one of the largest collections of antiquities in private ownership, returnednine antiquities to the Italian authorities.* Lucille A. Roussin is the founder and Director of the Holocaust Restitution Claims Practicumat the Benjamin N. Cardozo School of Law in New York City, where she also teaches a seminar on Remediesfor War Time Confiscation. She earned her law degree in 1996 from the Benjamin N. Cardozo School ofLaw. She was Deputy Research Director of the Art and Cultural Property Team of the PresidentialCommission on Holocaust Assets in the US and was an associate in the Art and International Law PracticeGroup at Herrick, Feinstein LLP in New York City. She also teaches a course on "Art, the Law andProfessional Ethics" in the School of Graduate Studies at the Fashion Institute of Technology. Dr. Roussinearned a Ph.D. in Art History & Archaeology from Columbia University. She is currently a member of theCultural Properties Legislation Committee of the Archaeological Institute of America and Co-Chair of theArt and Cultural Heritage Committee of the Section of International Law of the American Bar Associationand a member of the Art Law Committee of the Association of the Bar of the City of New York. Her lawpractice is primarily devoted to restitution of property taken from Jewish families during the Holocaust,especially Jewish ritual objects.I. See generally PETER WATSON & CECILIA TODESCHINI, THE MEDICI CONSPIRACY: THE ILLICITJOURNEY OF LOOTED ANTIQUITIES, FROM ITALY'S TOMB RAIDERS TO THE WORLD'S GREATEST MUSEUMS(PublicAffairs 2007) (2006).2. Dealer Repatriates Art, N.Y. TIMES, Nov. 7, 2007, at 2.3. Elisabetta Povoledo, CollectorReturns Art Italy Says Was Looted, N.Y. TIMES, Jan. 18, 2008,ILSA Journal of International & Comparative LawThe Italian and Greek efforts are characteristic of two simultaneous trends.Developed countries with strong economies, like Greece and Italy, areaggressively seeking restitution of stolen antiquities where they have sufficientproof that the objects were stolen. On the other hand, developing countries arejust beginning to assert claims to antiquities stolen long ago by colonialistgovernments. The best example of this is the flood of articles written by arthistorian Dr. Kwame Opoku about the Benin bronzes, now on exhibition at theArt Institute of Chicago.4 They were stolen by the British when they invadedBenin (modem Nigeria), took the king prisoner, and looted vast quantities ofBenin art.5Why are these objects so important to these nations? The distinctionbetween "cultural property" and "cultural heritage" is not merely semantic. Theterm "cultural property" is defined in the United Nations Educational, Scientificand Cultural Organization (UNESCO) Convention on the Means of Prohibitingand Preventing the Illicit Import, Export, and Transfer of Ownership of CulturalProperty as "property which, on religious or secular grounds, is specificallydesignated by each State as being of importance for archaeology, prehistory,history, literature, art or science ... ."6 The Convention enumerates elevencategories of property, including such items as flora, fauna, elements ofarchaeological sites that have been dismembered, antiquities over one hundredyears old, and objects of ethnological interest.7 In Article 2, the Conventionspeaks on broader terms and acknowledges that illicit import, export, andtransfer of ownership of cultural property is one of the main causes ofimpoverishment of "the cultural heritage of the countries of origin of suchproperty."8How, then, may we distinguish the term "cultural property" from "culturalheritage?" One expert has distinguished "heritage" as being essentially acollective and public notion, belonging by definition in the realm of publicinterest and held for the public good.9 Cultural "property" is "that specific formof property that enhances identity, understanding, and appreciation for the4. Ghana Investment Promotion Centre Strides On, MODERN GHANA NEWS, June 29, 2004, at1-2, available at http://www.modemghana.com/pdf/mgnews.pdf (last visited Feb. 26, 2009).5. Id. at 6.6. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transferof Ownership of Cultural Property art. 1, Apr. 24, 1972, 823 U.N.T.S. 231 [hereinafter UNESCOConvention].7. Id.8. Id. art. 2.9. Randall Mason, Conference Report: Economics and Heritage Conservation: Concepts,Values, and Agendas for Research, Getty Conservation Institute, Los Angeles, 8 INT'L J. CULTURAL PROP.550, 561 (1999).[Vol. 15:2culture that produced the particular property."'" Thus, cultural "property" maybe interpreted in a more limited sense as most often referring to an object orgroup of objects based on the significance of the object as one ofarchaeological, scientific, or historic importance. The importance of the objectas a source of information, its aesthetic qualities, and age, are also factors indetermining a definition of cultural "property."'"IThe most famous case where the definitions of cultural property andheritage intersect is that of the sculptures of the Parthenon, removed from theTemple of Athena on the Acropolis in Athens, shipped to England by LordElgin in the opening decades of the Nineteenth Century, and housed since 1816in the British Museum. 2 To the Greeks, these sculptures are the quintessentialsymbol of the Greek nation and they have been fighting for their restitution fordecades.1"Cultural property merges with cultural heritage in many areas of the globe,especially among the indigenous peoples of North and South America,Australia, New Zealand, and increasingly, countries on the African continent.The destruction of the cultural record-whether through decay, destruction orpillage-can give rise to cultural "memories" that take on a greater power as are-invention of the culture heritage. Thus, cultural artefacts serve to reify thepast, whether the historical past or a re-invention of that past, to assert a culturallineage connecting the present members of the society to their ancestors. Thisconcept has recently found more formal expression in the UNESCO UniversalDeclaration on Cultural Diversity, which states that, "particular attention mustbe paid to ... the specificity of cultural goods and services which, as vectorsof identity, values, and meaning, must not be treated as mere commodities orconsumer goods."' 4 This tendency is in direct conflict with the co-modificationof cultural objects and antiquities that is at the heart of most lawsuits; 15 torecover not only antiquities, but art that was stolen from Jewish families duringthe Holocaust.There has been in the last two years, I am happy to report, a great deal ofprogress in the relationships between museums and countries rich in antiquities.10. Patty Gerstenblith, Identity and Cultural Property: The Protection of Cultural property in theUnited States, 75 B.U. L. REV. 559, 569 (1995).11. Frank G. Fechner, The Fundamental Aims of Cultural Property Law, 7 INT'L J. CULTURALPROP. 376, 380 (1998).12. David Rudenstine, The Legality of Elgin's Taking: A Review Essay of Four Books on theParthenon Marbles, 8 INT'L J. CULTURAL PROP. 356, 356 (1999).13. Mark Rose, Special Report: Double Standards, ARCHAEOLOGY MAG., May/June 2002, at 14.14. Universal Declaration on Cultural Diversity art. 8, U.N. Doc. CLT-2002/WS/9 (Nov. 2,2001).15. See, e.g., Gov't ofPeru v. Johnson, 720 F.Supp. 810,811 (C.D. Cal. 1989), affd, Gov't ofPeruv. Wendt, 933 F.2d 1013 (9th Cir. 1991).2009] RoussinILSA Journal of International & Comparative LawAs a result of the negotiations surrounding the restitution of antiquities to Italy,there is an agreement that Italy will be much more cooperative in lendingantiquities to U.S. museums on a long-term basis. This, and other conditions,has been formalized through a bilateral agreement between Italy and the UnitedStates under the Cultural Property Implementation Act 6 (a topic for a wholeother talk).Both the American Association of Museums (AAM) and the Associationof Art Museum Directors (AAMD) have recently issued new policy statementson the acquisition of Antiquities. The American Association of Museum'sStandards go beyond the requirement that museums comply with applicableU.S. law, including treaties, international conventions, and states; "in addition,the AAM recommends that museums require documentation that the object wasout of the country of modern discovery by... 1970," the date of the UNESCOConvention. 7 The Standards also include "beyond the requirements of U.S.law," museums should not acquire objects that have been illegally exportedfrom the country in which it has been found.'" The Association of Art MuseumDirectors does not go as far as the AAM standards. Under the AAMDguidelines, the 1970 UNESCO Convention is the absolute terminus, andacquisition of objects that left their source countries before 1970-irrespectiveof how they left-may be acquired.' 9 Thus, it is up to the museum to decidewhether to acquire an object without a clear provenance, although they dorecommend weighing the financial and reputational consequences of such anacquisition.16. See Convention on Property and Implementation Act, 19 U.S.C. § 2606; see also CulturalProperty, 19 C.F.R. § 12.104(b) (2001) (including the State Parties to the Convention).17. AMERICAN ASS'N OF MUSEUMS, STANDARDS REGARDING ARCHAEOLOGICAL MATERIAL ANDANCIENT ART 1 (2008), available at http://www.aam-us.org/museumresources/ethics/upload/Standards%20RegardingO/o2OArchaeological%2OMaterial%20and%2OAncient%/20Art.pdf (last visited Feb. 26, 2009).18. Id.19. ASSOCIATION OF ART MUSEUM DIRS., REPORT OF THE AAMD TASK FORCE ON THEACQuIsmoN OF ARCHAEOLOGICAL MATERIALS AND ANCIENT ART I(E) (2008), available athttp://www.aamd.org/newsroom/documents/2008ReportAndRelease.pdf (last visited Feb. 26, 2009).[Vol. 15:2

The Trade In Antiquities: Heritage For Sale?

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The Trade In Antiquities: Heritage For Sale?

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