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Since cultural property is considered highly valuable and inherently desirable, it is important that laws concerning this type of property are reviewed and fully understood by the appraiser.
It is no surprise that foreign governments have ownership rights over any movable antiquities situated within their borders. Looted antiquities and cultural property have been a problem for culture-rich nations for centuries, but International protections for these objects began in May, 1954, with the Convention for the Protection of Cultural Property in the Event of Armed Conflict (the 1954 Hague Convention). The Hague Convention was the first international convention to deal solely with the protection of cultural property. It focused on protecting cultural property in times of war and was enacted in the shadow of the devasting destruction of artifacts and cultural landmarks that occurred during World War II. Further, the 1954 Hague Convention protects the transport of cultural property out of war zones and obligates warring states to return protected cultural property to its original state upon cessation of hostilities.
By far the broadest and most well-known international body associated with protecting cultural heritage is the United Nations Educational, Scientific, and Cultural Organization (UNESCO). UNESCO was established with the signing of the Constitution of UNESCO on November 16, 1945. In the years since, UNESCO has created two major initiatives to address stolen cultural property; (1) the 1970 UNESCO Convention, and, (2) the 1978 (ICPRCP) Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin, or its Restitution in Case of Illicit Appropriation (ICPRCP). Aimed at addressing restitution or return of lost cultural property, this international instrument would apply for cases arising before the entry into the 1970 Convention.
To accomplish these goals, the Convention governs the import and export of cultural property and provides guidelines for state parties to protect foreign and domestic antiquities. Its protections are much broader than the 1954 Hague Convention and suggests that the “true value of cultural property can be appreciated only in relation to the fullest possible information regarding its origin, history and traditional setting.” In essence, cultural artifacts lose value when taken out of their historical context.
In order to complement the 1970 Convention in the fight against the export, import and transfer of ownership of cultural property, the (UNIDROIT) Convention was adopted in 1995. This new Convention provides uniform treatment for the restitution of stolen or illegally exported cultural objects and allows private claims to go through national courts. To further assist with this object, an object ID Standard was established in 1997. This standard was the result of years of research in collaboration with museums, international police, the art trade and appraisers of art and antiques. This descriptive standard helps combat illegal appropriation of art objects and brings together organizations around the world.
In 2019, 68 States Parties submitted their national reports on the implementation of the 1970 Convention. This reporting system served to report and summarize progress made, and obstacles encountered with this regulation.
However, problems do arise in implementing these guidelines, including; (a) enforcement of the Convention is left to the discretion of state parties, (b) there is wide leeway in how states meet their obligations under the 1970 UNESCO Convention, (c) the United States severely limits these protections. For example, the United States, while a signatory, has codified only parts of the Convention. Secondly, the United states created a reservation prior to accepting the terms of the Convention, clarifying that it “understands the provisions of the Convention to be neither self-executing nor retroactive.” Because the 1970 UNESCO Convention is not retroactive, antiquities looted prior to the 1970 signing of the Convention are not protected, which forces any nation seeking recovery to fall back on their domestic patrimony laws, and common law remedies provided by the states, such as replevin, (a replevin action lets you seek to immediately recover property that was wrongfully taken) and conversion (taking over the rights of ownership and possession). In addition, claims by plaintiffs proving superior title to property must comply with a statute of limitations of three years from the discovery or from a reasonable time frame wherein the plaintiff should have discovered the theft.
To improve their stringent ownership requirements, many nations have passed laws to establish ownership over artifacts discovered on their sovereign soil. Recognition of foreign laws in the U.S. is consistent with the goals of international cultural heritage law, which clears the path to recovery, while protecting good faith purchasers from bad faith claims. Further assisting with the enforcement of these laws and relevant national regulations, the UNESCO Database of National Cultural Heritage was launched. In 2017, UNESCO along with other international organizations joined together against theft and illicit trafficking of cultural goods that resulted in the seizure of 3,561 artifacts.
Bresler, Judith, Lerner, Ralph E., Art Law, Volume II, Chapter 8, International Trade. Practicing Law Institute, New York, NY, 2005.
South Carolina Journal of International Law and Business
Jessica L. Darraby, Art, Artifact and Architecture Law, Thompson West.2006
National Historic Preservation Act, 16 U.S.C.470 a-2