Trading Places

Cultural property disputes are reshaping the art world—but how?

It's a sad truth that the depredations of war and imperialism have sometimes had positive side effects for art history. Take the Metropolitan Museum's recent "Manet-Velázquez" show, on the influence of 17^th-century Spanish painting on 19^th-century French art. For most of the 18^th century, Spanish artists like Murillo, Zurbaran, and Velázquez were little known outside their homeland. Then in the early 1800s, hundreds of Spanish paintings arrived in Paris as Napoleonic war loot. Some were briefly shown at the Louvre before Napoleon's defeat, after which they were returned. Later that century, French artists began adopting the Spanish artists' realist aesthetic and loose, sensuous brushwork—a move that laid the foundations of Impressionism and radically changed the course of modern art.

Unlike many European museums, American museums were built with civic and capitalist muscle, rather than imperial might. Yet well into the 1970s their attitude toward acquisitions—as any expert will admit off the record—was frequently "don't ask, don't tell." But today American courts are dealing with an unprecedented number of Holocaust reparation cases. And last year, the Justice Department successfully prosecuted a well-known New York dealer, Frederick Schultz, for conspiring to receive stolen Egyptian antiquities. As a result, some foreign collectors and museums have become more cautious about loaning work to museum shows—particularly those in America—and everyone has become vastly more diligent about conducting provenance research before buying.

What prompted this shift in global attention, when the world often turned a blind eye in the past?

The laws that allow countries to seek restitution of what's known as "cultural property" are a byproduct of the early 20^th century, when art-rich countries like Turkey, Italy, and Greece began to introduce what are known as "patrimony laws." (These essentially deem all newly discovered artifacts found within their borders to be the property of the state.)

The movement to protect world culture dramatically intensified after World War II, during which the Nazis and the Russian army confiscated unprecedented numbers of artworks from individuals and public institutions throughout Europe. 1954 saw the drafting of the Hague Convention—the first major international agreement to establish guidelines for protecting cultural property during wartime. Then, in the 1960s, the international art market heated up so much (resulting in increased trade of stolen goods) that UNESCO, in 1970, drafted another convention that encouraged countries to work together as much as possible to enforce each other's export restrictions. (By 2003, UNESCO's guidelines had been ratified by 96 countries, including the United States.) As Thomas Hoving, a former director of the Metropolitan Museum of Art, famously wrote in his 1993 memoir, Making the Mummies Dance, "I recognized that with the UNESCO hearings, the age of piracy had ended."

Today, trying to make sense of all the different international laws is enough to set anyone but a lawyer wailing like the tortured figure in Edvard Munch's "The Scream." In 1995, UNIDROIT (originally the legal auxiliary of the old League of Nations) drafted a convention that aims to enforce export restrictions and help unify cultural property laws worldwide. Within most countries, illegally gotten cultural property is generally covered by a nation's stolen property laws. But transport that cultural property across a border, and you may have violated civil law, criminal law, an import or an export prohibition, or a combination of the above, depending on which country we're talking about, what the object is, and who owns it—and that's just for starters. Much also depends on the particulars of the bilateral and multilateral agreements, if any, between the countries in question, which stipulate whether and to what degree one will honor another's export restrictions.

Obviously, when the dispute is between nations, national pride, politics, and political grandstanding tend to take precedence over law. That's probably why such disputes have a habit of becoming so emotional, and so unresolvable—as evidenced by the long-running brouhaha over the Elgin Marbles, which escalated about 20 years ago. Britain holds that the sculptures, removed from the Parthenon in the early 19^th century, were legally purchased by Lord Elgin from the Ottoman Empire, which then controlled Greece—a move that thereby saved them from destruction during Greece's War of Independence and by modern-day Greek air pollution. Yet Greece counters that the seller was an occupying force, therefore the purchase shouldn't count. Both nations regard the sculptures as their cultural patrimony. But Greece didn't exist as an independent nation until 1832—and in any case, its 20^th-century patrimony laws can't be applied retroactively. Perhaps that's why Greece, so far, has attempted to resolve the matter through diplomacy, rather than in court.

Last December, an alliance of about 40 major museums, known as the Bizot Group, issued a statement in support of the so-called "universal museum"—one whose collection brings together work from many periods and cultures. (18 museum directors signed the statement, including those of the Metropolitan, the Louvre, the Museum of Modern Art, and the Hermitage.) The statement argues that with time, objects become "part of the heritage of the nations which house them." Clearly, the signatories were also trying to protect their own backs: If the British Museum were ever to return the Elgin Marbles to Greece, the act would likely unleash a torrent of similar claims that could drain the resources—and the collections—of some of the world's great treasure-house museums.

Nonetheless, the Bizot statement has since been slammed by various museum associations and cultural watchdogs for being "Eurocentric" and for taking "a George Bush approach to international relations."

Yet when it comes to cases that can be fought in court, the United States (New York State and California in particular) is actually one of the best jurisdictions in the world in which to recover stolen art. For one thing, our common-law legal system offers theft victims better protection, because it mandates that even a good-faith purchaser cannot acquire stolen property.

The United States also has a record number of especially tough bilateral agreements with other countries, like Italy, Cyprus, and Peru, which allow those countries to pursue their own illegal export cases here. Yet to much of the world, our prosecutorial approach seems to miss the point. Europe and Japan, when balancing international relations against free trade, have tended to favor the latter—the argument in favor of a more relaxed art market being that it helps grease the wheels for traveling loan shows and allows museums to keep on collecting, thereby helping culture to circulate globally.

Of course, it doesn't matter what laws or bilateral agreements are in place if no one enforces them—as we've seen recently in Iraq. Yet using legal parameters as the restitution cut-off point makes total sense. Clearly, the issues underlying each case are complex; thus each must be judged individually. But a legal measuring stick—rather than a more amorphously moral one—still permits prosecution of cases involving Holocaust spoils and many 20^th-century export restriction breaches, while avoiding the Pandora's box of centuries-old claims that could be opened if the British Museum were to return the Elgin Marbles.

And ironically enough, as some recent conflicts have shown, it's not always such a terrible thing to have some of a country's treasures dispersed throughout the world. If an Elginesque diplomat had struck a dicey deal for Afghanistan's Bamiyan Buddhas in the 19^th century, the Taliban wouldn't have been able to shell them into smithereens in 2001. In May, just after the Baghdad Museum was looted and many of Iraq's Mesopotamian treasures were lost, the Metropolitan opened "Art of the First Cities," its own Mesopotamian survey, which relies heavily on loans from the British Museum, the Louvre, and the Hermitage. Were it not for 18^th- and 19^th-century imperialist depradation, that history might well not exist today.

Culturebox thanks Lawrence M. Kaye and Howard N. Spiegler of Herrick, Feinstein, LLP; Jason Hall, director of government and public affairs, the American Association of Museums; and the U.S. State Department's International Cultural Property Protection Web site.

Return to article

The wording of these laws generally applies to objects found "on and under the ground," in order to cover undocumented antiquities taken from archeological sites.

Return to article

Later in the century, European countries like Britain, France, and Italy, realizing that their own cultural legacy was being sold piecemeal to the new world economic power, America, began to establish their own export restrictions. These usually give a government first right of refusal when an object deemed essential to national heritage is sold. By 1983, most Communist countries and developing nations had also established their own such restrictions, ranging from qualified sale limitations to full-scale export embargos.

Return to article

After the Second World War, the Allies returned many displaced artworks to the nations they'd been stolen from, the assumption being that the countries themselves would locate the rightful owners. Frequently, this didn't happen. And because many of the nations that received returned work were part of the Soviet Union, their archives were sealed until recently, making it impossible for survivors and their descendents to gain the evidence needed to press claims. Thus the dissolution of the USSR has provoked a rash of new claims.

Many U.S. museums maintain public registries of artwork whose provenance has gaps during the Nazi era (1933-1945). In September, a searchable national registry of such work, the Nazi-Era Provenance Internet Portal, will go live on the American Association of Museums' Web site. Several states are also in the process of enacting Holocaust exception legislation. The toughest of these is a California law that became effective in January 2003: It doesn't permit museums and other institutions to use the statute of limitations defense for any action commenced before the end of 2010.

Return to article

New York's statute of limitations runs for three years, and the clock doesn't start ticking till the day after the plaintiff's demand has been refused.

Return to article

After the Second World War, the Allies returned many displaced artworks to the nations they'd been stolen from, the assumption being that the countries themselves would locate the rightful owners. Frequently, this didn't happen. And because many of the nations that received returned work were part of the Soviet Union, their archives were sealed until recently, making it impossible for survivors and their descendents to gain the evidence needed to press claims. Thus the dissolution of the USSR has provoked a rash of new claims.

Many U.S. museums maintain public registries of artwork whose provenance has gaps during the Nazi era (1933-1945). In September, a searchable national registry of such work, the Nazi-Era Provenance Internet Portal, will go live on the American Association of Museums' Web site. Several states are also in the process of enacting Holocaust exception legislation. The toughest of these is a California law that became effective in January 2003: It doesn't permit museums and other institutions to use the statute of limitations defense for any action commenced before the end of 2010.

Return to article

The United States may have some of the toughest restitution and repatriation laws in the world, but we've done a lousy job of protecting our own cultural patrimony. Among our few cultural heritage laws, the gold standard is probably the Native American Graves Protection and Repatriation Act (known as NAGPRA). Enacted in 1991, it established guidelines for tribes to reclaim anything associated with a burial ground, such as funerary objects and human remains, as well as sacred and communally owned objects. It's one of the toughest such laws in the world, and its principles have helped influence legislation in other countries with indigenous native populations, such as Canada, Australia, and New Zealand.

Article URL: http://www.slate.com/id/2086136/

Copyright 2009 Washingtonpost.Newsweek Interactive Co. LLC