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The Pursuit of Preservation through Patrimony Laws

Updated: Apr 7

Taken too far? Source countries’ recent trend of overreaching their cultural ownership claims could dilute the argument for respecting foreign patrimony laws.


About the Author: Eleanor Iris Gartstein is a first-year law student at Berkeley Law with a passion for art history and its intersections with international law. Eleanor's particular interests lie in topics surrounding cultural heritage and art repatriation.


Palmyra, Syria. Image by Shutterstock, available here.


There are three consistent truths to the black art market: it is unregulated, it is increasingly lucrative, and it harbors a never-ending stream of demand. The sheer scale and scope of antiquities trafficking is undeniable. Source countries such as Italy, Greece, and Turkey, distinguished by their archaeologically rich histories, have consequently suffered the brunt of the harm caused by this now highly organized practice. 


Site looting and destruction are paramount concerns to the governments of these source countries. As a result, many nations have one-by-one implemented patrimony laws, which vest ownership in the state of any cultural property discovered after the date of enactment. By declaring found antiquities as government property, private ownership and their export is thus prohibited. While the black art market may see an endless stream of demand, it is its supply that patrimony laws seek to restrict. Egypt presented the first example of this in 1891, and patrimony laws have since come to play a pivotal role in international law.


Patrimony Laws in Action: Enforcement in the United States 


Any instance where a law attempts to regulate outside its territorial borders brings a fundamental question of enforcement. In the case of the United States’ approach, criminal legislation has come to work alongside civil law as a method towards enforcing patrimony.


National Stolen Property Act

The National Stolen Property Act (NSPA) of 1934 operates as the primary vehicle for criminal prosecution of cultural property crimes in the United States. It prohibits the transport or receipt of any foreign commerce valued at $5,000 or more if the individual knows the goods are “stolen, converted, or taken by fraud.” But how can a federal court’s jurisdiction be expanded to apply the NSPA to violations of foreign patrimony? In a 1977 case involving the illegal export of pre-Columbian artifacts from Mexico, the Fifth Circuit officially addressed this question. It ruled that U.S. courts must recognize, if deemed valid, foreign laws vesting ownership of heritage objects. The resulting McClain doctrine established four criteria for determining a foreign patrimony law’s validity, and thus enforceability, in U.S. courts: (1) The law must be “clear and unambiguous”; (2) the law must be more than a mere export restriction; (3) the property at issue must have been found within the modern boundaries of the country asserting ownership; and (4) the property must have been discovered after enactment of the law. All this together makes it so that where the act of importing stolen property triggers the NSPA, and a foreign government has a justified claim of ownership under the McClain doctrine, countries are able to assert their patrimony laws in U.S. courts and prosecute for its violation.  


Cultural Property Implementation Act

The NSPA operates alongside the Cultural Property Implementation Act (CPIA) of 1893, which grants the United States authority to enter into bilateral cultural property agreements with signatories of the 1970 UNESCO Convention. In fact, countries cannot benefit from the protection provisions of the UNESCO Convention unless they seek and receive a bilateral agreement of this kind with the United States. Rather than include a blanket ban on the import of stolen cultural patrimony, like Germany or the United Kingdom has, the CPIA enables the U.S. to impose import restrictions for a designated list of illicitly traded material determined to be under threat of looting. To qualify for this protection, a country has to demonstrate (1) their cultural heritage is at risk, (2) they have taken reasonable steps to address that risk, (3) U.S. aid is necessary and likely to help, and (4) alternative measures would not suffice. Only then will the United States agree to ban the import of certain items and artifacts. The CPIA does not come without criticisms; in its 40 years of existence, only 30 total bilateral agreements have come to fruition, with two currently expired. By choosing to put the onus on the foreign government to seek out such agreements, the United States stands as an outlier in its approach to deterring cultural theft. Should the United States follow the lead of other countries that prohibit suspicious imports automatically? Is this perhaps the preferred route for effectively combating the black art market?


Diverging Theories of Ownership: Source Countries vs. Museums


If there is one thing the potency of debate and unanswered questions surrounding cultural heritage indicates, it is that there are endless viewpoints within the field. With so much existing divergence in cultural property perspectives, the line between right and wrong can easily become muddled. 


The Museum Point of View

Encyclopedic museums have been commonly cast as the “bad guys” within the sphere of cultural ownership, profiting off the horrors of the past with their extravagant worldly collections. While museum conduct certainly has its flaws, not all instances of museum acquisition should necessarily be seen as villainous by the public. Western institutions stand behind the prevailing belief that cultural property is best placed within their walls. The museum perspective is that they promote a cosmopolitan worldview and facilitate greater cultural understanding through their advanced resources, general accessibility, expertise in conservation, and technology. While the use of courts against major museums is a useful avenue towards enforcing foreign patrimony, museums do serve a civic purpose that should not be entirely shortchanged due to shifting attitudes toward history. 


The Source Country Point of View

Source countries, on the other hand, view cultural property as an embodiment of their community. The “country of origin” argument stresses that removing objects from their origin and decontextualizing them is detrimental to our understanding of the past. Establishing rightful ownership for objects from vast ancient civilizations according to modern-day borders, however, comes with inherent contradictions. UNESCO has defined cultural property as the “common heritage of mankind.” If this definition is to be followed, are political and territorial boundaries even relevant to cultural heritage? Even if so, are there instances where countries attempt to use their patrimony laws on an illegitimate basis? While there is assuredly deep sympathy in source countries’ pursuit to preserve their heritage, some instances of demands for return on the basis of “patrimony” have presented less obvious, more questionable contexts.


The Risk of Overreach: Italy as a Case Study


Indicative of this is the recent exercise of Italian patrimony laws, which have been characterized as particularly strict. The Italian government has taken a rather aggressive stance to their claims of cultural ownership, seeking the “return” of arguably more than they’re owed. The Italian Cultural Heritage Code has even been used to bar icons of art history from the public domain, as illustrated by the legal disputes over the use of Leonardo da Vinci’s Vitruvian Man and Sandro Botticelli’s Birth of Venus. This trend seems to point to Italy having created its own, rather overinclusive, definition of “Italian ownership.”


The Getty Bronze

A prime example of this is the Getty Bronze, a Greek sculpture that has come to be the subject of a relentless, ongoing ownership dispute between the J. Paul Getty Museum and Italy. Officially titled the Victorious Youth, the sculpture was first recovered in 1964 from a shipwreck in the Adriatic Sea by Italian fishermen. Note that this sculpture is Greek and was discovered underwater, not on Italian soil. Nevertheless, Italy has claimed the sculpture to be their rightful property under its 1939 cultural patrimony law. They have spent the last several years demanding it be deaccessioned from the Getty and returned to them. This particular context brings a rare scenario where restitution would not right an extreme injustice of the past. The moral and ethical grounds that typically motivate a call for return are lacking here, leading me to believe that Italy may be overreaching with its patrimony laws here. Accidental discovery by Italian citizens does not equate to making it an Italian object. With only an incidental connection to the country, it is hard to see how Italy can make the argument that the Getty Bronze embodies their culture and rightfully belongs there. With no “country of origin” basis for patrimony, this looks to be more of an attempt at acquisitive patrimony.


Potential Impact


While instances of overreaching ownership may make up only a small portion of claims, they do bring a high risk of diluting international respect for foreign patrimony laws of other countries. In an already adversarial world, this can only ignite the flames of ongoing debate. There is no doubt that source countries have disproportionately suffered from the atrocities of cultural theft and destruction. Enacting patrimony laws to function as the basis for rightful ownership surely makes sense, but only if executed properly. Rather than using a law set by oneself as an all-encompassing claim for cultural ownership, source countries must focus their advocate efforts only on legitimate patrimony claims. Otherwise, we open the floodgates to unwarranted repatriation requests and further alienate the museum community.

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