The need to revamp current domestic protection for cultural property

Northwestern University Law Review

Volumn 96, Issue 3, 2002, Pages 1207-1237

  Patt, Jodi ^a  

^a UNIVERSITY OF ILLINOIS AT URBANA CHAMPAIGN   (United States)

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EID: 0041885006     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (262)

1. E.B. TYLOR, PRIMITIVE CULTURE 1 (1924).
2. See Patty Gerstenblith, Identity and Cultural Property: The Protection of Cultural Property in the United States, 75 B.U. L. REV. 559, 561 (1995) (quoting John Frohnmayer, former Chairman of the National Endowment for the Arts, who stated that one view of culture is that it "resides in those commodities that we are able to buy and sell, and the greater the price, the more prized the item").
3. JAY RUMNEY & JOSEPH MAIER, SOCIOLOGY: THE SCIENCE OF SOCIETY 82 (1953).
4. United Nations Educational, Scientific & Cultural Org. website, at http://www.unesco.org/ culture/heritage (last modified Sept. 19, 2001).
5. Gerstenblith, supra note 2, at 562 (defining cultural property as the "physical embodiment of culture in tangible objects").
6. See Jonathan Drimmer, Hate Property: A Substantive Limitation for America's Cultural Property Laws, 65 TENN. L. REV. 691, 702 (1998).
7. John Moustakas, Group Rights in Cultural Property: Justifying Strict Inalienability, 74 CORNELL L. REV. 1179, 1195 (1989) (citations omitted).
8. John Henry Merryman, The Public Interest in Cultural Property, 77 CAL. L. REV. 339, 349 (1989) (citations omitted).
9. See Gerstenblith, supra note 2.
10. Id. at 564.
11. Moustakas, supra note 7, at 1196 (discussing, for example, the detrimental impact that the destruction of the Statue of Liberty would have on U.S. immigrants, or that the fall of Jerusalem's Wailing Wall would have on the Jewish community).
12. Jordana Hughes, Note, The Trend Toward Liberal Enforcement of Repatriation Claims in Cultural Property Disputes, 33 GEO. WASH. INT'L L. REV. 131, 134 (2000) (citations omitted).
13. Monique Olivier, The UNIDROIT Convention: Attempting to Regulate the International Trade and Traffic of Cultural Property, 26 GOLDEN GATE U. L. REV. 627, 627 (1996).
14. Id. at 627-28.
15. See id. (providing statistics on the booming illicit art trade industry); Moustakas, supra note 7, at 1182 (describing the illicit trade of cultural property as "continuing wholesale.").
16. Patty Gerstenblith, Ownership and Protection of Heritage: Cultural Property Rights for the 21st Century: The Public Interest in the Restitution of Cultural Objects, 16 CONN. J. INT'L L. 197, 199 (2001).
17. Id.
18. Jonathan S. Moore, Enforcing Foreign Ownership Claims in the Antiquities Market, 97 YALE L.J. 466, 466 (1988).
19. Id. at 466-67; Gerstenblith, supra note 16, at 212.
20. Id. at 466-67; Gerstenblith, supra note 16, at 212.
21. Gerstenblith, supra note 16, at 212 (utilizing the United States's Antiquities Act, which grants ownership of archeological objects located on federal and tribal land to the national government, as an example of national ownership laws).
22. Olivier, supra note 13, at 633.
23. See id. at 634 (stating that the power of the "black market" for art is "evidenced by the stolen European art that is frequently recovered abroad").
24. Id. at 629.
25. Id.
26. See, e.g., National Stolen Property Act, 18 U.S.C. § 2314 (2000); Cultural Property Implementation Act, 19 U.S.C. § 2601 (2000).
27. See, e.g., National Stolen Property Act, 18 U.S.C. § 2314 (2000); Cultural Property Implementation Act, 19 U.S.C. § 2601 (2000).
28. Olivier, supra note 13, at 629-30.
29. 18 U.S.C. § 2314.
30. 19 U.S.C.A. § 2601.
31. See PAUL M. BATOR, THE INTERNATIONAL TRADE IN ART 11 (1981).
32. Id. (emphasis omitted).
33. Id. at 12.
34. 18 U.S.C. § 2314.
35. 19 U.S.C. § 2601.
36. 18 U.S.C. § 2314.
37. Id. It is also important to note that the NSPA does not apply unless the goods have a value of $5,000 or greater.
38. See Peter J.G. Toren, The Prosecution of Trade Secrets Thefts Under Federal Law, 22 PEPP. L. REV. 59, 67-68 (1994) (quoting and explaining the National Stolen Property Act).
39. 18 U.S.C. § 2314.
40. Id.
41. Id.
42. 18 U.S.C. § 545. Section 545 states: Whoever fraudulently or knowingly imports or brings into the United States, any merchandise, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been brought into the United States contrary to law [is guilty of a crime] . . . . Merchandise introduced into the United States in violation of this section, or the value thereof, to be recovered from any person described in the first or second paragraph of this section, shall be forfeited to the United States. Id.
43. See United States v. Antique Platter of Gold, 991 F. Supp. 222, 228-229 (S.D.N.Y. 1997).
44. Gerstenblith, supra note 16, at 214; Moore, supra note 18, at 472 n.33; see also United States v. McClain, 593 F.2d 658 (5th Cir. 1979) (involving a NSPA action for the return of Pre-Columbian artifacts that were stolen from Mexico); United States v. McClain, 545 F.2d 988 (5th Cir. 1977) (same); United States v. Hollinshead, 495 F.2d 1154 (9th Cir. 1974) (involving a NSPA action for the return of a Mayan artifact from Guatemala).
45. Gerstenblith, supra note 16, at 214; Moore, supra note 18, at 472 n.33; see also United States v. McClain, 593 F.2d 658 (5th Cir. 1979) (involving a NSPA action for the return of Pre-Columbian artifacts that were stolen from Mexico); United States v. McClain, 545 F.2d 988 (5th Cir. 1977) (same); United States v. Hollinshead, 495 F.2d 1154 (9th Cir. 1974) (involving a NSPA action for the return of a Mayan artifact from Guatemala).
46. Gerstenblith, supra note 16, at 214; Moore, supra note 18, at 472 n.33; see also United States v. McClain, 593 F.2d 658 (5th Cir. 1979) (involving a NSPA action for the return of Pre-Columbian artifacts that were stolen from Mexico); United States v. McClain, 545 F.2d 988 (5th Cir. 1977) (same); United States v. Hollinshead, 495 F.2d 1154 (9th Cir. 1974) (involving a NSPA action for the return of a Mayan artifact from Guatemala).
47. Moore, supra note 18, at 472 n.33.
48. Id.
49. Id.
50. Claudia Fox, Comment, The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects: An Answer to the World Problem of Illicit Trade in Cultural Property, 9 AM. U. J. INT'L L. & POL'Y 225, 232 (1993).
51. 18 U.S.C. § 2314 (2000).
52. Fox, supra note 46, at 233. Fox comments: Proving scienter in stolen art cases is normally more difficult than for other commercial goods. This difficulty is a function of the nature of the art transaction itself. Often, the exchange of art objects is made through art dealers and auction houses that take very few measures to verify the provenance of the artwork. This lack of procedural safeguards makes it difficult to show a legitimate chain of title. Thus, more often than not, stolen artwork resurfaces on the legitimate market with the purchaser unaware of its illicit background. Id.
53. Moore, supra note 18, at 472.
54. Id.
55. Id.
56. United States v. Schultz, 178 F. Supp. 2d 445, 448 (S.D.N.Y. 2002) (citation omitted).
57. R. BROWN, THE LAW OF PERSONAL PROPERTY 33 (3d ed. 1975).
58. Fox, supra note 46, at 236.
59. Id.
60. Moore, supra note 18, at 472 n.33.
61. Id. at 472 n.34.
62. See Andrea E. Hayworth, Stolen Artwork: Deciding Ownership Is No Pretty Picture, 43 DUKE L.J. 337, 342 (1993) (addressing the preclusive effect of the statute of limitations on true owners' ability to bring actions in replevin).
63. Gerstenblith, supra note 16, at 212 n.55.
64. Fox, supra note 46, at 237; Marilyn E. Phelan, Scope of Due Diligence Investigation in Obtaining Title to Valuable Artwork, 23 SEATTLE U. L. REV. 631, 633 (2000).
65. Fox, supra note 46, at 237; Marilyn E. Phelan, Scope of Due Diligence Investigation in Obtaining Title to Valuable Artwork, 23 SEATTLE U. L. REV. 631, 633 (2000).
66. Phelan, supra note 60, at 634.
67. Id.
68. Id. at 638.
69. Leah E. Eisen, The Missing Piece: A Discussion of Theft, Statutes of Limitations, and Title Disputes in the Art World, 81 J. CRJM. L. & CRIMINOLOGY 1067, 1072 (1991).
70. See Stephanie Cuba, Stop the Clock: The Case to Suspend the Statute of Limitations on Claims for Nazi Looted Art, 17 CARDOZO ARTS & ENT. L.J. 447, 455 (1999).
71. See, e.g., DeWeerth v. Baldinger, 658 F. Supp. 688 (S.D.N.Y.), rev'd, 836 F.2d 103 (2d Cir. 1987), remand to 804 F. Supp. 539 (S.D.N.Y. 1992), rev'd, 38 F.3d 1266 (2d Cir.), cert. denied, 513 U.S. 1001 (1994) (taking thirteen years to resolve the statute of limitations issue).
72. See, e.g., DeWeerth v. Baldinger, 658 F. Supp. 688 (S.D.N.Y.), rev'd, 836 F.2d 103 (2d Cir. 1987), remand to 804 F. Supp. 539 (S.D.N.Y. 1992), rev'd, 38 F.3d 1266 (2d Cir.), cert. denied, 513 U.S. 1001 (1994) (taking thirteen years to resolve the statute of limitations issue).
73. See, e.g., DeWeerth v. Baldinger, 658 F. Supp. 688 (S.D.N.Y.), rev'd, 836 F.2d 103 (2d Cir. 1987), remand to 804 F. Supp. 539 (S.D.N.Y. 1992), rev'd, 38 F.3d 1266 (2d Cir.), cert. denied, 513 U.S. 1001 (1994) (taking thirteen years to resolve the statute of limitations issue).
74. See, e.g., ALASKA STAT. § 09.10.070(a)(3) (2001) (providing a two-year statute of limitations); ARIZ. REV. STAT. § 12-542 (2001) (providing a two-year statute of limitations); ARK. CODE ANN. § 16-56-105 (2001) (providing a three-year statute of limitations); COLO. REV. STAT. § 13-80-101 (2001) (providing a three-year statute of limitations); GA. CODE ANN. § 9-3-32 (2000) (providing a four-year statute of limitations); IDAHO CODE § 5-218 (2000) (providing a three-year statute of limitations); IND. CODE ANN. § 34-11-2-4 (Michie 2001) (providing a two-year statute of limitations); KAN. STAT. ANN. § 60-513(a)(2) (2000) (providing a two-year statute of limitations); MASS. ANN. LAWS ch. 260, § 4 (Law. Co-op 2001) (providing a three-year statute of limitations); NEB. REV. STAT. § 25-207 (2001) (providing a four-year statute of limitations); NEV. REV. STAT. ANN. § 11.190 (Michie 2001) (providing a three-year statute of limitations); N.C. GEN. STAT. § 1-52 (2000) (providing a three-year statute of limitations); OKLA. STAT. tit. 12, § 95 (2000) (providing a two-year statute of limitations); S.C. CODE ANN. § 15-3-530 (Law. Co-op. 2000) (providing a three-year statute of limitations); UTAH CODE ANN. § 78-12-26 (2001) (providing a three-year statute of limitations); WASH. REV. CODE § 4.16.080 (2001) (providing a three-year statute of limitations).
75. See, e.g., ALASKA STAT. § 09.10.070(a)(3) (2001) (providing a two-year statute of limitations); ARIZ. REV. STAT. § 12-542 (2001) (providing a two-year statute of limitations); ARK. CODE ANN. § 16-56-105 (2001) (providing a three-year statute of limitations); COLO. REV. STAT. § 13-80-101 (2001) (providing a three-year statute of limitations); GA. CODE ANN. § 9-3-32 (2000) (providing a four-year statute of limitations); IDAHO CODE § 5-218 (2000) (providing a three-year statute of limitations); IND. CODE ANN. § 34-11-2-4 (Michie 2001) (providing a two-year statute of limitations); KAN. STAT. ANN. § 60-513(a)(2) (2000) (providing a two-year statute of limitations); MASS. ANN. LAWS ch. 260, § 4 (Law. Co-op 2001) (providing a three-year statute of limitations); NEB. REV. STAT. § 25-207 (2001) (providing a four-year statute of limitations); NEV. REV. STAT. ANN. § 11.190 (Michie 2001) (providing a three-year statute of limitations); N.C. GEN. STAT. § 1-52 (2000) (providing a three-year statute of limitations); OKLA. STAT. tit. 12, § 95 (2000) (providing a two-year statute of limitations); S.C. CODE ANN. § 15-3-530 (Law. Co-op. 2000) (providing a three-year statute of limitations); UTAH CODE ANN. § 78-12-26 (2001) (providing a three-year statute of limitations); WASH. REV. CODE § 4.16.080 (2001) (providing a three-year statute of limitations).
76. See, e.g., ALASKA STAT. § 09.10.070(a)(3) (2001) (providing a two-year statute of limitations); ARIZ. REV. STAT. § 12-542 (2001) (providing a two-year statute of limitations); ARK. CODE ANN. § 16-56-105 (2001) (providing a three-year statute of limitations); COLO. REV. STAT. § 13-80-101 (2001) (providing a three-year statute of limitations); GA. CODE ANN. § 9-3-32 (2000) (providing a four-year statute of limitations); IDAHO CODE § 5-218 (2000) (providing a three-year statute of limitations); IND. CODE ANN. § 34-11-2-4 (Michie 2001) (providing a two-year statute of limitations); KAN. STAT. ANN. § 60-513(a)(2) (2000) (providing a two-year statute of limitations); MASS. ANN. LAWS ch. 260, § 4 (Law. Co-op 2001) (providing a three-year statute of limitations); NEB. REV. STAT. § 25-207 (2001) (providing a four-year statute of limitations); NEV. REV. STAT. ANN. § 11.190 (Michie 2001) (providing a three-year statute of limitations); N.C. GEN. STAT. § 1-52 (2000) (providing a three-year statute of limitations); OKLA. STAT. tit. 12, § 95 (2000) (providing a two-year statute of limitations); S.C. CODE ANN. § 15-3-530 (Law. Co-op. 2000) (providing a three-year statute of limitations); UTAH CODE ANN. § 78-12-26 (2001) (providing a three-year statute of limitations); WASH. REV. CODE § 4.16.080 (2001) (providing a three-year statute of limitations).
77. See, e.g., ALASKA STAT. § 09.10.070(a)(3) (2001) (providing a two-year statute of limitations); ARIZ. REV. STAT. § 12-542 (2001) (providing a two-year statute of limitations); ARK. CODE ANN. § 16-56-105 (2001) (providing a three-year statute of limitations); COLO. REV. STAT. § 13-80-101 (2001) (providing a three-year statute of limitations); GA. CODE ANN. § 9-3-32 (2000) (providing a four-year statute of limitations); IDAHO CODE § 5-218 (2000) (providing a three-year statute of limitations); IND. CODE ANN. § 34-11-2-4 (Michie 2001) (providing a two-year statute of limitations); KAN. STAT. ANN. § 60-513(a)(2) (2000) (providing a two-year statute of limitations); MASS. ANN. LAWS ch. 260, § 4 (Law. Co-op 2001) (providing a three-year statute of limitations); NEB. REV. STAT. § 25-207 (2001) (providing a four-year statute of limitations); NEV. REV. STAT. ANN. § 11.190 (Michie 2001) (providing a three-year statute of limitations); N.C. GEN. STAT. § 1-52 (2000) (providing a three-year statute of limitations); OKLA. STAT. tit. 12, § 95 (2000) (providing a two-year statute of limitations); S.C. CODE ANN. § 15-3-530 (Law. Co-op. 2000) (providing a three-year statute of limitations); UTAH CODE ANN. § 78-12-26 (2001) (providing a three-year statute of limitations); WASH. REV. CODE § 4.16.080 (2001) (providing a three-year statute of limitations).
78. See, e.g., ALASKA STAT. § 09.10.070(a)(3) (2001) (providing a two-year statute of limitations); ARIZ. REV. STAT. § 12-542 (2001) (providing a two-year statute of limitations); ARK. CODE ANN. § 16-56-105 (2001) (providing a three-year statute of limitations); COLO. REV. STAT. § 13-80-101 (2001) (providing a three-year statute of limitations); GA. CODE ANN. § 9-3-32 (2000) (providing a four-year statute of limitations); IDAHO CODE § 5-218 (2000) (providing a three-year statute of limitations); IND. CODE ANN. § 34-11-2-4 (Michie 2001) (providing a two-year statute of limitations); KAN. STAT. ANN. § 60-513(a)(2) (2000) (providing a two-year statute of limitations); MASS. ANN. LAWS ch. 260, § 4 (Law. Co-op 2001) (providing a three-year statute of limitations); NEB. REV. STAT. § 25-207 (2001) (providing a four-year statute of limitations); NEV. REV. STAT. ANN. § 11.190 (Michie 2001) (providing a three-year statute of limitations); N.C. GEN. STAT. § 1-52 (2000) (providing a three-year statute of limitations); OKLA. STAT. tit. 12, § 95 (2000) (providing a two-year statute of limitations); S.C. CODE ANN. § 15-3-530 (Law. Co-op. 2000) (providing a three-year statute of limitations); UTAH CODE ANN. § 78-12-26 (2001) (providing a three-year statute of limitations); WASH. REV. CODE § 4.16.080 (2001) (providing a three-year statute of limitations).
79. See, e.g., ALASKA STAT. § 09.10.070(a)(3) (2001) (providing a two-year statute of limitations); ARIZ. REV. STAT. § 12-542 (2001) (providing a two-year statute of limitations); ARK. CODE ANN. § 16-56-105 (2001) (providing a three-year statute of limitations); COLO. REV. STAT. § 13-80-101 (2001) (providing a three-year statute of limitations); GA. CODE ANN. § 9-3-32 (2000) (providing a four-year statute of limitations); IDAHO CODE § 5-218 (2000) (providing a three-year statute of limitations); IND. CODE ANN. § 34-11-2-4 (Michie 2001) (providing a two-year statute of limitations); KAN. STAT. ANN. § 60-513(a)(2) (2000) (providing a two-year statute of limitations); MASS. ANN. LAWS ch. 260, § 4 (Law. Co-op 2001) (providing a three-year statute of limitations); NEB. REV. STAT. § 25-207 (2001) (providing a four-year statute of limitations); NEV. REV. STAT. ANN. § 11.190 (Michie 2001) (providing a three-year statute of limitations); N.C. GEN. STAT. § 1-52 (2000) (providing a three-year statute of limitations); OKLA. STAT. tit. 12, § 95 (2000) (providing a two-year statute of limitations); S.C. CODE ANN. § 15-3-530 (Law. Co-op. 2000) (providing a three-year statute of limitations); UTAH CODE ANN. § 78-12-26 (2001) (providing a three-year statute of limitations); WASH. REV. CODE § 4.16.080 (2001) (providing a three-year statute of limitations).
80. See, e.g., ALASKA STAT. § 09.10.070(a)(3) (2001) (providing a two-year statute of limitations); ARIZ. REV. STAT. § 12-542 (2001) (providing a two-year statute of limitations); ARK. CODE ANN. § 16-56-105 (2001) (providing a three-year statute of limitations); COLO. REV. STAT. § 13-80-101 (2001) (providing a three-year statute of limitations); GA. CODE ANN. § 9-3-32 (2000) (providing a four-year statute of limitations); IDAHO CODE § 5-218 (2000) (providing a three-year statute of limitations); IND. CODE ANN. § 34-11-2-4 (Michie 2001) (providing a two-year statute of limitations); KAN. STAT. ANN. § 60-513(a)(2) (2000) (providing a two-year statute of limitations); MASS. ANN. LAWS ch. 260, § 4 (Law. Co-op 2001) (providing a three-year statute of limitations); NEB. REV. STAT. § 25-207 (2001) (providing a four-year statute of limitations); NEV. REV. STAT. ANN. § 11.190 (Michie 2001) (providing a three-year statute of limitations); N.C. GEN. STAT. § 1-52 (2000) (providing a three-year statute of limitations); OKLA. STAT. tit. 12, § 95 (2000) (providing a two-year statute of limitations); S.C. CODE ANN. § 15-3-530 (Law. Co-op. 2000) (providing a three-year statute of limitations); UTAH CODE ANN. § 78-12-26 (2001) (providing a three-year statute of limitations); WASH. REV. CODE § 4.16.080 (2001) (providing a three-year statute of limitations).
81. See, e.g., ALASKA STAT. § 09.10.070(a)(3) (2001) (providing a two-year statute of limitations); ARIZ. REV. STAT. § 12-542 (2001) (providing a two-year statute of limitations); ARK. CODE ANN. § 16-56-105 (2001) (providing a three-year statute of limitations); COLO. REV. STAT. § 13-80-101 (2001) (providing a three-year statute of limitations); GA. CODE ANN. § 9-3-32 (2000) (providing a four-year statute of limitations); IDAHO CODE § 5-218 (2000) (providing a three-year statute of limitations); IND. CODE ANN. § 34-11-2-4 (Michie 2001) (providing a two-year statute of limitations); KAN. STAT. ANN. § 60-513(a)(2) (2000) (providing a two-year statute of limitations); MASS. ANN. LAWS ch. 260, § 4 (Law. Co-op 2001) (providing a three-year statute of limitations); NEB. REV. STAT. § 25-207 (2001) (providing a four-year statute of limitations); NEV. REV. STAT. ANN. § 11.190 (Michie 2001) (providing a three-year statute of limitations); N.C. GEN. STAT. § 1-52 (2000) (providing a three-year statute of limitations); OKLA. STAT. tit. 12, § 95 (2000) (providing a two-year statute of limitations); S.C. CODE ANN. § 15-3-530 (Law. Co-op. 2000) (providing a three-year statute of limitations); UTAH CODE ANN. § 78-12-26 (2001) (providing a three-year statute of limitations); WASH. REV. CODE § 4.16.080 (2001) (providing a three-year statute of limitations).
82. See, e.g., ALASKA STAT. § 09.10.070(a)(3) (2001) (providing a two-year statute of limitations); ARIZ. REV. STAT. § 12-542 (2001) (providing a two-year statute of limitations); ARK. CODE ANN. § 16-56-105 (2001) (providing a three-year statute of limitations); COLO. REV. STAT. § 13-80-101 (2001) (providing a three-year statute of limitations); GA. CODE ANN. § 9-3-32 (2000) (providing a four-year statute of limitations); IDAHO CODE § 5-218 (2000) (providing a three-year statute of limitations); IND. CODE ANN. § 34-11-2-4 (Michie 2001) (providing a two-year statute of limitations); KAN. STAT. ANN. § 60-513(a)(2) (2000) (providing a two-year statute of limitations); MASS. ANN. LAWS ch. 260, § 4 (Law. Co-op 2001) (providing a three-year statute of limitations); NEB. REV. STAT. § 25-207 (2001) (providing a four-year statute of limitations); NEV. REV. STAT. ANN. § 11.190 (Michie 2001) (providing a three-year statute of limitations); N.C. GEN. STAT. § 1-52 (2000) (providing a three-year statute of limitations); OKLA. STAT. tit. 12, § 95 (2000) (providing a two-year statute of limitations); S.C. CODE ANN. § 15-3-530 (Law. Co-op. 2000) (providing a three-year statute of limitations); UTAH CODE ANN. § 78-12-26 (2001) (providing a three-year statute of limitations); WASH. REV. CODE § 4.16.080 (2001) (providing a three-year statute of limitations).
83. See, e.g., ALASKA STAT. § 09.10.070(a)(3) (2001) (providing a two-year statute of limitations); ARIZ. REV. STAT. § 12-542 (2001) (providing a two-year statute of limitations); ARK. CODE ANN. § 16-56-105 (2001) (providing a three-year statute of limitations); COLO. REV. STAT. § 13-80-101 (2001) (providing a three-year statute of limitations); GA. CODE ANN. § 9-3-32 (2000) (providing a four-year statute of limitations); IDAHO CODE § 5-218 (2000) (providing a three-year statute of limitations); IND. CODE ANN. § 34-11-2-4 (Michie 2001) (providing a two-year statute of limitations); KAN. STAT. ANN. § 60-513(a)(2) (2000) (providing a two-year statute of limitations); MASS. ANN. LAWS ch. 260, § 4 (Law. Co-op 2001) (providing a three-year statute of limitations); NEB. REV. STAT. § 25-207 (2001) (providing a four-year statute of limitations); NEV. REV. STAT. ANN. § 11.190 (Michie 2001) (providing a three-year statute of limitations); N.C. GEN. STAT. § 1-52 (2000) (providing a three-year statute of limitations); OKLA. STAT. tit. 12, § 95 (2000) (providing a two-year statute of limitations); S.C. CODE ANN. § 15-3-530 (Law. Co-op. 2000) (providing a three-year statute of limitations); UTAH CODE ANN. § 78-12-26 (2001) (providing a three-year statute of limitations); WASH. REV. CODE § 4.16.080 (2001) (providing a three-year statute of limitations).
84. See, e.g., ALASKA STAT. § 09.10.070(a)(3) (2001) (providing a two-year statute of limitations); ARIZ. REV. STAT. § 12-542 (2001) (providing a two-year statute of limitations); ARK. CODE ANN. § 16-56-105 (2001) (providing a three-year statute of limitations); COLO. REV. STAT. § 13-80-101 (2001) (providing a three-year statute of limitations); GA. CODE ANN. § 9-3-32 (2000) (providing a four-year statute of limitations); IDAHO CODE § 5-218 (2000) (providing a three-year statute of limitations); IND. CODE ANN. § 34-11-2-4 (Michie 2001) (providing a two-year statute of limitations); KAN. STAT. ANN. § 60-513(a)(2) (2000) (providing a two-year statute of limitations); MASS. ANN. LAWS ch. 260, § 4 (Law. Co-op 2001) (providing a three-year statute of limitations); NEB. REV. STAT. § 25-207 (2001) (providing a four-year statute of limitations); NEV. REV. STAT. ANN. § 11.190 (Michie 2001) (providing a three-year statute of limitations); N.C. GEN. STAT. § 1-52 (2000) (providing a three-year statute of limitations); OKLA. STAT. tit. 12, § 95 (2000) (providing a two-year statute of limitations); S.C. CODE ANN. § 15-3-530 (Law. Co-op. 2000) (providing a three-year statute of limitations); UTAH CODE ANN. § 78-12-26 (2001) (providing a three-year statute of limitations); WASH. REV. CODE § 4.16.080 (2001) (providing a three-year statute of limitations).
85. See, e.g., ALASKA STAT. § 09.10.070(a)(3) (2001) (providing a two-year statute of limitations); ARIZ. REV. STAT. § 12-542 (2001) (providing a two-year statute of limitations); ARK. CODE ANN. § 16-56-105 (2001) (providing a three-year statute of limitations); COLO. REV. STAT. § 13-80-101 (2001) (providing a three-year statute of limitations); GA. CODE ANN. § 9-3-32 (2000) (providing a four-year statute of limitations); IDAHO CODE § 5-218 (2000) (providing a three-year statute of limitations); IND. CODE ANN. § 34-11-2-4 (Michie 2001) (providing a two-year statute of limitations); KAN. STAT. ANN. § 60-513(a)(2) (2000) (providing a two-year statute of limitations); MASS. ANN. LAWS ch. 260, § 4 (Law. Co-op 2001) (providing a three-year statute of limitations); NEB. REV. STAT. § 25-207 (2001) (providing a four-year statute of limitations); NEV. REV. STAT. ANN. § 11.190 (Michie 2001) (providing a three-year statute of limitations); N.C. GEN. STAT. § 1-52 (2000) (providing a three-year statute of limitations); OKLA. STAT. tit. 12, § 95 (2000) (providing a two-year statute of limitations); S.C. CODE ANN. § 15-3-530 (Law. Co-op. 2000) (providing a three-year statute of limitations); UTAH CODE ANN. § 78-12-26 (2001) (providing a three-year statute of limitations); WASH. REV. CODE § 4.16.080 (2001) (providing a three-year statute of limitations).
86. See, e.g., ALASKA STAT. § 09.10.070(a)(3) (2001) (providing a two-year statute of limitations); ARIZ. REV. STAT. § 12-542 (2001) (providing a two-year statute of limitations); ARK. CODE ANN. § 16-56-105 (2001) (providing a three-year statute of limitations); COLO. REV. STAT. § 13-80-101 (2001) (providing a three-year statute of limitations); GA. CODE ANN. § 9-3-32 (2000) (providing a four-year statute of limitations); IDAHO CODE § 5-218 (2000) (providing a three-year statute of limitations); IND. CODE ANN. § 34-11-2-4 (Michie 2001) (providing a two-year statute of limitations); KAN. STAT. ANN. § 60-513(a)(2) (2000) (providing a two-year statute of limitations); MASS. ANN. LAWS ch. 260, § 4 (Law. Co-op 2001) (providing a three-year statute of limitations); NEB. REV. STAT. § 25-207 (2001) (providing a four-year statute of limitations); NEV. REV. STAT. ANN. § 11.190 (Michie 2001) (providing a three-year statute of limitations); N.C. GEN. STAT. § 1-52 (2000) (providing a three-year statute of limitations); OKLA. STAT. tit. 12, § 95 (2000) (providing a two-year statute of limitations); S.C. CODE ANN. § 15-3-530 (Law. Co-op. 2000) (providing a three-year statute of limitations); UTAH CODE ANN. § 78-12-26 (2001) (providing a three-year statute of limitations); WASH. REV. CODE § 4.16.080 (2001) (providing a three-year statute of limitations).
87. See, e.g., ALASKA STAT. § 09.10.070(a)(3) (2001) (providing a two-year statute of limitations); ARIZ. REV. STAT. § 12-542 (2001) (providing a two-year statute of limitations); ARK. CODE ANN. § 16-56-105 (2001) (providing a three-year statute of limitations); COLO. REV. STAT. § 13-80-101 (2001) (providing a three-year statute of limitations); GA. CODE ANN. § 9-3-32 (2000) (providing a four-year statute of limitations); IDAHO CODE § 5-218 (2000) (providing a three-year statute of limitations); IND. CODE ANN. § 34-11-2-4 (Michie 2001) (providing a two-year statute of limitations); KAN. STAT. ANN. § 60-513(a)(2) (2000) (providing a two-year statute of limitations); MASS. ANN. LAWS ch. 260, § 4 (Law. Co-op 2001) (providing a three-year statute of limitations); NEB. REV. STAT. § 25-207 (2001) (providing a four-year statute of limitations); NEV. REV. STAT. ANN. § 11.190 (Michie 2001) (providing a three-year statute of limitations); N.C. GEN. STAT. § 1-52 (2000) (providing a three-year statute of limitations); OKLA. STAT. tit. 12, § 95 (2000) (providing a two-year statute of limitations); S.C. CODE ANN. § 15-3-530 (Law. Co-op. 2000) (providing a three-year statute of limitations); UTAH CODE ANN. § 78-12-26 (2001) (providing a three-year statute of limitations); WASH. REV. CODE § 4.16.080 (2001) (providing a three-year statute of limitations).
88. See, e.g., ALASKA STAT. § 09.10.070(a)(3) (2001) (providing a two-year statute of limitations); ARIZ. REV. STAT. § 12-542 (2001) (providing a two-year statute of limitations); ARK. CODE ANN. § 16-56-105 (2001) (providing a three-year statute of limitations); COLO. REV. STAT. § 13-80-101 (2001) (providing a three-year statute of limitations); GA. CODE ANN. § 9-3-32 (2000) (providing a four-year statute of limitations); IDAHO CODE § 5-218 (2000) (providing a three-year statute of limitations); IND. CODE ANN. § 34-11-2-4 (Michie 2001) (providing a two-year statute of limitations); KAN. STAT. ANN. § 60-513(a)(2) (2000) (providing a two-year statute of limitations); MASS. ANN. LAWS ch. 260, § 4 (Law. Co-op 2001) (providing a three-year statute of limitations); NEB. REV. STAT. § 25-207 (2001) (providing a four-year statute of limitations); NEV. REV. STAT. ANN. § 11.190 (Michie 2001) (providing a three-year statute of limitations); N.C. GEN. STAT. § 1-52 (2000) (providing a three-year statute of limitations); OKLA. STAT. tit. 12, § 95 (2000) (providing a two-year statute of limitations); S.C. CODE ANN. § 15-3-530 (Law. Co-op. 2000) (providing a three-year statute of limitations); UTAH CODE ANN. § 78-12-26 (2001) (providing a three-year statute of limitations); WASH. REV. CODE § 4.16.080 (2001) (providing a three-year statute of limitations).
89. See, e.g., ALASKA STAT. § 09.10.070(a)(3) (2001) (providing a two-year statute of limitations); ARIZ. REV. STAT. § 12-542 (2001) (providing a two-year statute of limitations); ARK. CODE ANN. § 16-56-105 (2001) (providing a three-year statute of limitations); COLO. REV. STAT. § 13-80-101 (2001) (providing a three-year statute of limitations); GA. CODE ANN. § 9-3-32 (2000) (providing a four-year statute of limitations); IDAHO CODE § 5-218 (2000) (providing a three-year statute of limitations); IND. CODE ANN. § 34-11-2-4 (Michie 2001) (providing a two-year statute of limitations); KAN. STAT. ANN. § 60-513(a)(2) (2000) (providing a two-year statute of limitations); MASS. ANN. LAWS ch. 260, § 4 (Law. Co-op 2001) (providing a three-year statute of limitations); NEB. REV. STAT. § 25-207 (2001) (providing a four-year statute of limitations); NEV. REV. STAT. ANN. § 11.190 (Michie 2001) (providing a three-year statute of limitations); N.C. GEN. STAT. § 1-52 (2000) (providing a three-year statute of limitations); OKLA. STAT. tit. 12, § 95 (2000) (providing a two-year statute of limitations); S.C. CODE ANN. § 15-3-530 (Law. Co-op. 2000) (providing a three-year statute of limitations); UTAH CODE ANN. § 78-12-26 (2001) (providing a three-year statute of limitations); WASH. REV. CODE § 4.16.080 (2001) (providing a three-year statute of limitations).
90. Cuba, supra note 65, at 455.
91. See, e.g., statutes cited supra note 67.
92. Cuba, supra note 65, at 456.
93. Id.; see also Fox, supra note 46, at 237.
94. See DeWeerth v. Baldinger, 836 F.2d 103, 109 (2d Cir. 1987) (noting that, aside from New York, a demand and refusal is not necessary to start the tolling of the statute in virtually every other state); see also Guggenheim Found. v. Lubell, 536 F. Supp. 829 (E.D.N.Y. 1991) (stating that "New York case law has long protected the right of the owner whose property has been stolen to recover that property, even if it is in the possession of a good faith purchaser for value").
95. See DeWeerth v. Baldinger, 836 F.2d 103, 109 (2d Cir. 1987) (noting that, aside from New York, a demand and refusal is not necessary to start the tolling of the statute in virtually every other state); see also Guggenheim Found. v. Lubell, 536 F. Supp. 829 (E.D.N.Y. 1991) (stating that "New York case law has long protected the right of the owner whose property has been stolen to recover that property, even if it is in the possession of a good faith purchaser for value").
96. See, e.g., Menzel v. List, 267 N.Y.S.2d 804, 809 (N.Y. Sup. Ct. 1966), rev'd on other grounds, 24 N.Y.2d 91 (1969). In Menzel, Nazis stole a Marc Chagall painting from an owner's residence in 1941. The location of the painting was unknown until 1955, which was when List bought it from a gallery. The Menzels located the painting in 1962, under List's possession. The Court held that the statute of limitations began to run as soon as the Menzels demanded the painting and List refused to return it, rather than when the piece was first stolen by the Nazis. Id.
97. See, e.g., Menzel v. List, 267 N.Y.S.2d 804, 809 (N.Y. Sup. Ct. 1966), rev'd on other grounds, 24 N.Y.2d 91 (1969). In Menzel, Nazis stole a Marc Chagall painting from an owner's residence in 1941. The location of the painting was unknown until 1955, which was when List bought it from a gallery. The Menzels located the painting in 1962, under List's possession. The Court held that the statute of limitations began to run as soon as the Menzels demanded the painting and List refused to return it, rather than when the piece was first stolen by the Nazis. Id.
98. Cuba, supra note 65, at 456.
99. Guggenheim Found. v. Lubell, 569 N.E.2d 426 (N.Y. 1991).
100. Phelan, supra note 60, at 639.
101. Id. at 641.
102. Id.
103. Steven A. Bibas, The Case Against Statutes of Limitations for Stolen Art, 103 YALE L.J. 2437, 2445 (1994).
104. Id. at 2445-46.
105. Phelan, supra note 60, at 647.
106. Id. at 697. The Court of Appeals of New York addressed the applicability of the laches defense to stolen art works in Guggenheim Foundation v. Lubell, 569 N.E.2d 426 (N.Y. 1991). That case involved an action in replevin by a museum for the return of a Chagall painting that had been stolen from the museum over twenty years prior. The bona fide purchaser of the painting argued that the museum's claim was barred by New York's three-year statute of limitations "because the museum had done nothing to locate its property in the 20-year interval between the theft and the museum's fortuitous discovery of that the painting was in Mrs. Lubell's possession." Id. at 428. The court rejected the contention that the statute of limitations had run because the museum had not affirmatively acted to locate its painting, and disclaimed the idea that the demand and refusal rule also created a duty of due diligence on the true owner to locate the whereabouts of its property. Id. at 430. However the court did suggest that the museum's claim could be precluded if Lubell, instead, raised a laches defense The court stated that to be successful on a laches defense, the defendant must show that she was prejudiced by the museum's substantial delay in attempting to locate its property. Id. at 431. Thus, although the court did not decide the laches issue in this case, it did open the door for a laches defense to be used in replevin actions for return of stolen artworks in the future.
107. DeWeerth v. Baldinger, 836 F.2d 103, 109 (2d Cir. 1987); Guggenheim Found., 569 N.E.2d 426.
108. Hayworth, supra note 58, at 351.
109. Carla J. Shapreau, California Adopts an "Actual" Discovery Accrual Rule for Claims to Recover Stolen Art, 7 INT'L. J. CULTURAL PROP. 177, 179 (1998).
110. Phelan, supra note 60, at 649.
111. Id. at 650.
112. Id. at 649.
113. Id.
114. See, e.g., O'Keefe v. Snyder, 416 A.2d 862 (N.J. 1980); Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc., 717 F. Supp. 1374 (S.D. Ind. 1989).
115. See, e.g., O'Keefe v. Snyder, 416 A.2d 862 (N.J. 1980); Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc., 717 F. Supp. 1374 (S.D. Ind. 1989).
116. Cuba, supra note 65, at 459; see also DeWerth v. Baldinger, 658 F. Supp. 688, 692 (S.D.N.Y. 1987), rev'd, 836 F.2d 103 (2d Cir. 1987) (noting that an individual in search of lost work generally lacks the knowledge, resources and experience in order to successfully locate the art).
117. Cuba, supra note 65, at 459; see also DeWerth v. Baldinger, 658 F. Supp. 688, 692 (S.D.N.Y. 1987), rev'd, 836 F.2d 103 (2d Cir. 1987) (noting that an individual in search of lost work generally lacks the knowledge, resources and experience in order to successfully locate the art).
118. Cuba, supra note 65, at 459; Deborah DePorter Hoover, Title Disputes in the Art Market: An Emerging Duty of Care for Art Merchants, 51 GEO. WASH. L. REV. 443, 458-63 (1983).
119. Cuba, supra note 65, at 459; Deborah DePorter Hoover, Title Disputes in the Art Market: An Emerging Duty of Care for Art Merchants, 51 GEO. WASH. L. REV. 443, 458-63 (1983).
120. Cuba, supra note 65, at 460.
121. Bibas, supra note 79, at 2448.
122. Id. at 2458.
123. Id.
124. Convention on Cultural Property Implementation Act, 19 U.S.C. §§ 2601-13 (1988 & Supp. 1994).
125. Jennifer N. Lehman, Note, The Continued Struggle with Stolen Cultural Property: The Hague Convention, the UNESCO Convention, and the UNIDROIT Draft Convention, 14 ARIZ. J. INT'L & COMP. L. 527, 539 (1997).
126. Jennifer Sultan, Comment, Combating the Illicit Art Trade in the European Union: Europol's Role in Recovering Stolen Artwork, 18 NW. J. INT'L L. & BUS. 759, 772 (1998).
127. Id.
128. Ian M. Goldrich, Balancing the Need for Repatriation of Illegally Removed Cultural Property with the Interests of Bona Fide Purchasers: Applying the UNIDROIT Convention to the Case of the Gold Phiale 23 FORDHAM INT'L L.J. 118, 135 (1999).
129. Lawrence M. Kaye, Art Wars: The Repatriation Battle, 31 N.Y.U. J. INT'L L. & POL. 79, 84 (1998).
130. Sultan, supra note 99, at 773-74.
131. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Oct. 12-Nov. 14, 1970, 823 U.N.T.S. 231, 232 [hereinafter UNESCO Convention].
132. Id. at 234.
133. Id. at 234-36.
134. Id. at 238. The relevant text of Article 5 is as follows: To ensure the protection of their cultural property against illicit import, export and transfer of ownership, the States Parties to this Convention undertake, as appropriate for each country, to set up within their territories one or more national services, where such services do not already exist, for the protection of the cultural heritage. Id.
135. Id. at 240. The full text of Article 6 is as follows: The States Parties to this Convention undertake: a. To introduce an appropriate certificate in which the exporting State would specify that the export of the cultural property in question is authorized. The certificate should accompany all items of cultural property exported in accordance with the regulations; b. To prohibit the exportation of cultural property from their territory unless accompanied by the above-mentioned export certificate; c. To publicize this prohibition by appropriate means, particularly among persons likely to export or import cultural property. Id.
136. Id. at 240. Article 7(a) provides, in relevant part: The State Parties to this Convention undertake: To take the necessary measures, consistent with national legislation, to prevent museums and similar institutions within their territories from acquiring cultural property originating in another State Party which has been illegally exported after entry into force of this Convention, in the States concerned. Id.
137. Id.
138. Id.
139. Goldrich, supra note 101. at 138; see also Nina R. Lenzner, Comment, The Illicit International Trade in Cultural Property: Does the UNIDROIT Convention Provide an Effective Remedy for the Shortcomings of the UNESCO Convention?, 15 U. PA. J. INT'L BUS. L. 469, 484-85. (1994 ("It is this final qualifying phrase which renders the article moot in the United States, where it is possible to import something legally regardless of whether the item has been legally exported from its country of origin.").
140. Goldrich, supra note 101. at 138; see also Nina R. Lenzner, Comment, The Illicit International Trade in Cultural Property: Does the UNIDROIT Convention Provide an Effective Remedy for the Shortcomings of the UNESCO Convention?, 15 U. PA. J. INT'L BUS. L. 469, 484-85. (1994 ("It is this final qualifying phrase which renders the article moot in the United States, where it is possible to import something legally regardless of whether the item has been legally exported from its country of origin.").
141. UNESCO Convention, supra note 104, at 240.
142. Goldrich, supra note 101, at 139.
143. See UNESCO Convention, List of Signatories, at http://www.unesco.org/culture/laws/1970/ html_eng/page3.shtml (Jan. 17, 2002). The following list of signatories is current as of January 2002: Algeria, Angola, Argentina, Armenia, Australia, Azerbaijan, Bahamas, Bangladesh, Belarus, Belize, Bolivia, Bosnia-Herzegovina, Brazil, Bulgaria, Burkina Faso, Cambodia, Cameroon, Canada, Central African Republic, China, Colombia, Costa Rica, Cote D'Ivoire, Croatia, Cuba, Cyprus, Czech Republic, Democratic People's Republic of Korea, Democratic Republic of Congo, Dominican Republic, Ecuador, Egypt, El Salvador, Estonia, Finland, France, Georgia, Greece, Grenada, Guatemala, Guinea, Honduras, Hungary, India, Islamic Republic of Iran, Iraq, Italy, Jordan, Kuwait, Kyrgyzstan, Lebanon, Libyan Arab Jamahiriya, Lithuania, Madagascar, Mali, Mauritania, Mauritius, Mexico, Mongolia, Nepal, Nicaragua, Niger, Nigeria, Oman, Pakistan, Panama, Peru, Poland, Portugal, Qatar, Republic of Korea, Romania, Russian Federation, Rwanda, Saudi Arabia, Senegal, Slovakia, Slovenia, Spain, Sri Lanka, Syrian Arab Republic, Tajikistan, The Former Yugoslav Republic of Macedonia, Tunisia, Turkey, Ukraine, United Republic of Tanzania, United States of America, Uruguay, Uzbekistan, Yugoslavia, and Zambia. Id.
144. See Kaye, supra note 102, at 86.
145. Sultan, supra note 99, at 776-77.
146. Dalya Alberge, Britain Acts to Prevent Illicit Trade in Art, TIMES (London), Mar. 15, 2001; Ellen Herscher, Looters Beware, WASH. POST, Dec. 30, 2000, at A21.
147. Dalya Alberge, Britain Acts to Prevent Illicit Trade in Art, TIMES (London), Mar. 15, 2001; Ellen Herscher, Looters Beware, WASH. POST, Dec. 30, 2000, at A21.
148. See Lehman, supra note 98, at 543.
149. Id.
150. 19 U.S.C. § 2601(6) (1998).
151. LYNDEL V. PROTT, COMMENTARY ON THE UNIDROIT CONVENTION ON STOLEN AND ILLEGALLY EXPORTED CULTURAL OBJECTS 1995, at 15 (1997).
152. See 19 U.S.C. § 2602, § 2603.
153. James F. Fitzpatrick, Stealth UNIDROIT: Is the U.S. the Villain?, 31 N.Y.U. J. INT'L L. & POL. 47, 50 (1998).
154. 19 U.S.C. § 2601(2)(i) defines objects of archeological interests as objects "of cultural significance" that are at least 250 years old and are "normally discovered as a result of scientific excavation, clandestine or accidental digging, or exploration on land or under water."
155. 19 U.S.C. § 2601(2)(ii) defines objects of ethnological value as products of a nonindustrial society or tribe that are "important to the cultural heritage of a people because of its distinctive characteristics, comparative rarity, or its contribution to the knowledge of the origins, development, or history of that people."
156. 19 U.S.C. § 2602(a)(1).
157. According to § 2602 of the CPIA, the President may authorize importing restrictions on certain cultural property only if the requesting country enters into a bilateral or multilateral agreement with the United States. 19 U.S.C. § 2602(2). Such an agreement gives the United States the right to apply the restrictions laid out in § 2606 in order to "deter[] a situation of serious pillage." 19 U.S.C. § 2602(a)(1)(C)(i).
158. According to § 2602 of the CPIA, the President may authorize importing restrictions on certain cultural property only if the requesting country enters into a bilateral or multilateral agreement with the United States. 19 U.S.C. § 2602(2). Such an agreement gives the United States the right to apply the restrictions laid out in § 2606 in order to "deter[] a situation of serious pillage." 19 U.S.C. § 2602(a)(1)(C)(i).
159. 19 U.S.C. §§ 2602(a)(1)(A)-(B). Section 2602(a)(2)(a) of CPIA states that the United States can apply import restrictions to "archeological or ethnological material . . . the pillage of which is creating . . . jeopardy to the cultural patrimony" of the requesting state. In addition, accompanying the CPIA was a Senate report that stated that the CPIA would authorize the President "to apply specific import or other controls (upon the request of a State Party) to archeological or ethnological materials specifically identified as comprising a part of a state's cultural patrimony that is in danger of being pillaged." S. REP. NO. 97-564, at 21 (1982), reprinted in 1982 U.S.C.C.A.N. 4078, 4098.
160. 19 U.S.C. §§ 2602(a)(1)(A)-(B). Section 2602(a)(2)(a) of CPIA states that the United States can apply import restrictions to "archeological or ethnological material . . . the pillage of which is creating . . . jeopardy to the cultural patrimony" of the requesting state. In addition, accompanying the CPIA was a Senate report that stated that the CPIA would authorize the President "to apply specific import or other controls (upon the request of a State Party) to archeological or ethnological materials specifically identified as comprising a part of a state's cultural patrimony that is in danger of being pillaged." S. REP. NO. 97-564, at 21 (1982), reprinted in 1982 U.S.C.C.A.N. 4078, 4098.
161. See 19 U.S.C. § 2603.
162. Id.
163. § 2603(a).
164. § 2603.
165. § 2603(c)(1).
166. § 2606(a).
167. § 2606(b).
168. § 2607.
169. See UNESCO Convention, supra note 104, Art. 7(b)(i), at 240.
170. 19 U.S.C. § 2605(a), (b)(2).
171. § 2605(b)(1). These officials are appointed for terms of three years, and are eligible for being reappointed for one or more terms. § 2605(b)(3)(A).
172. § 2605(d).
173. § 2605(h).
174. § 2605(f)(1).
175. § 2605(f)(4).
176. § 2605.
177. See Chart of Current and Expired Import Restrictions Under the Convention on Cultural Property Implementation Act, at http://exchanges.state.gov/education/culprop/chart.html (last modified Dec. 7, 2001).
178. Id.
179. Fox, supra note 46, at 235-36.
180. Id.
181. See generally id. at 455-60.
182. 19 U.S.C. § 2601(7).
183. § 2603.
184. PROTT, supra note 122.
185. Id.
186. Sultan supra note 99, at 787. The UNESCO Convention deals with the problem of illicit traffic by means of administrative procedures and State action; the UNIDROIT Convention provides direct access to the courts of ones State by the owner of a stolen cultural object or by a State from which it has been illicitly exported. They thus complement one another. PROTT, supra note 122.
187. Sultan supra note 99, at 787. The UNESCO Convention deals with the problem of illicit traffic by means of administrative procedures and State action; the UNIDROIT Convention provides direct access to the courts of ones State by the owner of a stolen cultural object or by a State from which it has been illicitly exported. They thus complement one another. PROTT, supra note 122.
188. See Final Act of the Diplomatic Conference for the Adoption of the Draft UNIDROIT Convention on the International Return of Stolen or Illegally Exported Cultural Objects, June 24, 1995, Introductory Note by Harold S. Burman, 34 I.L.M. 1322, 1322 (1995) [hereinafter UNIDROIT Convention].
189. See Olivier, supra note 13, at 655.
190. Id.
191. Id.
192. UNIDROIT Convention, supra note 156, at 1330.
193. PROTT, supra note 122, at 12-13.
194. Id.
195. See UNIDROIT Convention, supra note 156, Annex, at 1339; UNESCO Convention, supra note 104, Art. 1, at 234-36.
196. See UNIDROIT Convention, supra note 156, Annex, at 1339; UNESCO Convention, supra note 104, Art. 1, at 234-36.
197. UNIDROIT Convention, supra note 156, Art. 2, at 1331.
198. PROTT, supra note 122, at 15.
199. Lehman, supra note 98, at 545.
200. Sultan, supra note 99, at 787. Fundamentally, the Unidroit Convention is a compromise between the interests of the original owners of cultural property and those of the good faith purchaser. The authors of the Convention, learning from the UNESCO 1970 Convention, did not seek to penalize either group based upon a moral judgment of right and wrong behavior. Rather, they approached the problem from a perspective of practicality, fully aware that the interests of all parties could not be protected. The authors sought the solution that provides the best general remedy to the illegal trade. Knowing this, the Unidroit Convention as a whole is best understood keeping in mind its philosophical underpinning: "The possessor of a [stolen] cultural object . . . shall return it." Brian Bengs, Dead on Arrival? A Comparison of the UNIDROIT Convention on Stolen or Illegally Exported Cultural Projects and U.S. Property Law, 6 TRANSNAT'L L. & CONTEMP. PROBS. 503, 527 (2000).
201. Sultan, supra note 99, at 787. Fundamentally, the Unidroit Convention is a compromise between the interests of the original owners of cultural property and those of the good faith purchaser. The authors of the Convention, learning from the UNESCO 1970 Convention, did not seek to penalize either group based upon a moral judgment of right and wrong behavior. Rather, they approached the problem from a perspective of practicality, fully aware that the interests of all parties could not be protected. The authors sought the solution that provides the best general remedy to the illegal trade. Knowing this, the Unidroit Convention as a whole is best understood keeping in mind its philosophical underpinning: "The possessor of a [stolen] cultural object . . . shall return it." Brian Bengs, Dead on Arrival? A Comparison of the UNIDROIT Convention on Stolen or Illegally Exported Cultural Projects and U.S. Property Law, 6 TRANSNAT'L L. & CONTEMP. PROBS. 503, 527 (2000).
202. See UNIDROIT Convention, supra note 156, Art. 3, at 1331 ("The possessor of a cultural object which has been stolen shall return it.").
203. See UNIDROIT Convention, supra note 156, which states: The possessor of a stolen cultural object required to return it shall be entitled, at the time of its restitution, to payment of fair and reasonable compensation provided that the possessor neither knew nor ought reasonably to have known that the object was stolen and can prove that it exercised due diligence when acquiring the object. Id. at 1332.
204. See UNIDROIT Convention, supra note 156, which states: The possessor of a stolen cultural object required to return it shall be entitled, at the time of its restitution, to payment of fair and reasonable compensation provided that the possessor neither knew nor ought reasonably to have known that the object was stolen and can prove that it exercised due diligence when acquiring the object. Id. at 1332.
205. See Fox, supra note 46, at 237; Phelan, supra note 60.
206. See Fox, supra note 46, at 237; Phelan, supra note 60.
207. UNIDROIT Convention, supra note 156, Art. 4(1), at 1332 (emphasis added).
208. Chauncey D. Steele IV, The Morgantina Treasure: Italy's Quest for Repatriation of Looted Artifacts, 23 SUFFOLK TRANSNAT'L L. REV. 667, 693 (1999).
209. Lehman, supra note 98, at 546.
210. Compare Bengs, supra note 167, at 528 (arguing that "the due diligence requirement of the UNIDROIT Convention stands in distinct contrast to the due diligence requirements placed on the original owner in a common law replevin action"), with Bibas, supra note 79, at 2449 (arguing that "courts have become increasingly uncomfortable with awarding title to possessors because possessors often buy under suspicious circumstances without investigating title," and as a result, a trend toward placing the diligence requirement on the possessor is emerging).
211. Compare Bengs, supra note 167, at 528 (arguing that "the due diligence requirement of the UNIDROIT Convention stands in distinct contrast to the due diligence requirements placed on the original owner in a common law replevin action"), with Bibas, supra note 79, at 2449 (arguing that "courts have become increasingly uncomfortable with awarding title to possessors because possessors often buy under suspicious circumstances without investigating title," and as a result, a trend toward placing the diligence requirement on the possessor is emerging).
212. See UNIDROIT Convention, supra note 156, Art. 4(4), at 1332.
213. See id., Art. 6(2), at 1333, which states, "In determining whether the possessor knew or ought reasonably to have known that the cultural object had been illegally exported, regard shall be had to the circumstances of the acquisition, including the absence of an export certificate required under the law of the requesting State."
214. Art of the Lam, WASH. POST, Nov. 25, 1995, at A20.
215. Lehman, supra note 98, at 547.
216. Id.
217. See UNIDROIT Convention, supra note 156, Art. 8(1), at 1334. Article 8(1) states: A claim under Chapter II and a request under Chapter III may be brought before the courts or other competent authorities of the Contracting State where the cultural object is located, in addition to the other courts or other competent authorities otherwise having jurisdiction under the rules in force in Contracting States. Id. It is also important to note that UNIDROIT's choice of the term "claimant" is vital to this convention, for it creates a private right to action; the party bringing the claim need not be a state.
218. UNIDROIT Convention, supra note 156, Art. 5(1), at 1332. Article 5(1) provides that "a Contracting State may request the court or other competent authority of another Contracting State to order the return of a cultural object illegally exported from the territory of the requesting State." Id.
219. Id.
220. See 18 U.S.C. §§ 2602, 2603, 2606 (1998) (jointly stating that, if a bilateral agreement exists or an emergency situation is declared, the President can apply the import restrictions that require documentation that the object was not exported in violation of the source nation's laws).
221. See Lehman, supra note 98, at 548-49 (supporting the adoption of UNIDROIT in the United States).
222. See, e.g., Kaye, supra note 102, at 87.
223. Id.
224. See UNIDROIT Convention, supra note 156, Art. 5, at 1332-33.
225. See id. at 1333.
226. Id., Art. 5(3), at 1333. The text of Article 5(3) is as follows: (3) The court or other competent authority of the State addressed shall order the return of an illegally exported cultural object if the requesting State establishes that the removal of the object from its territory significantly impairs one or more of the following interests: (a) the physical preservation of the object or of its context; (b) the integrity of a complex object; (c) the preservation of information of, for example, a scientific or historical character; (d) the traditional or ritual use of the object by a tribal or indigenous community, or establishes that the object is of significant cultural importance for the requesting State. Id.
227. See Lehman, supra note 98, at 546.
228. UNIDROIT Convention, supra note 156, Art. 3(3), at 1331.
229. Id., Art. 3(5), at 1331.
230. Id.
231. The Bush Administration, comprised of conservative Republicans, is likely to be committed to federalism, and therefore, not in favor of taking the power to impose a statute of limitations away from the states. But see Carl Tubbesing, Federalism's Ups and Downs: It's Pretty Much Agreed That Devolution Has Wanted, and There Are Considerable Pressures for Centralization. What's Not Clear Is Why, STATE LEGISLATURES, Feb. 1, 2002, at 13 (noting that the Bush Administration has committed itself to causes like educational reform, which involved preempting a number of state laws in order to pass the Elementary and Secondary Education Act).
232. See UNIDROIT Convention, supra note 156, Art. 9(1), at 1335. ("Nothing in this Convention shall prevent a Contracting State from applying any rules more favourable to the restitution or return of stolen or illegally exported cultural objects than provided for by this Convention.").
233. Id.
234. Lehman, supra note 98, at 546.
235. See id.
236. Id. at 545.
237. Marilyn E. Phelan, The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects Confirms a Separate Property Status for Cultural Treasures, 5 VILL. SPORTS & ENT. L.J. 31, 37 (1998).
238. Id. at 37-38.
239. See UNIDROIT Convention, supra note 156, Art. 10(3), at 1335. Article 10, in total, provides: (1) The provisions of Chapter II shall apply only in respect of a cultural object that is stolen after this Convention enters into force in respect of the State where the claim is brought, provided that: (a) the object was stolen from the territory of a Contracting State after the entry into force of this Convention for that State; or (b) the object is located in a Contracting State after the entry into force of the Convention for that State. (2) The provisions of Chapter III shall apply only in respect of a cultural object that is illegally exported after this Convention enters into force for the requesting State as well as the State where the request is brought. (3) This convention does not in any way legitimize any illegal transaction of whatever nature which has taken place before the entry into force of this Convention or which is excluded under paragraphs (1) or (2) of this article, nor limit any right of a State or other person to a claim under remedies available outside the framework of this Convention for the restitution or return of a cultural object stolen or illegally exported before the entry into force of this Convention. Id. at 1334-35.
240. See UNIDROIT Convention, supra note 156, Art. 10(3), at 1335. Article 10, in total, provides: (1) The provisions of Chapter II shall apply only in respect of a cultural object that is stolen after this Convention enters into force in respect of the State where the claim is brought, provided that: (a) the object was stolen from the territory of a Contracting State after the entry into force of this Convention for that State; or (b) the object is located in a Contracting State after the entry into force of the Convention for that State. (2) The provisions of Chapter III shall apply only in respect of a cultural object that is illegally exported after this Convention enters into force for the requesting State as well as the State where the request is brought. (3) This convention does not in any way legitimize any illegal transaction of whatever nature which has taken place before the entry into force of this Convention or which is excluded under paragraphs (1) or (2) of this article, nor limit any right of a State or other person to a claim under remedies available outside the framework of this Convention for the restitution or return of a cultural object stolen or illegally exported before the entry into force of this Convention. Id. at 1334-35.
241. See Phelan, supra note 200, at 37.
242. Lehman, supra note 98, at 544.
243. See UNIDROIT Convention, supra note 156, Art. 4(4), at 1332.
244. Id.
245. Id.
246. Id.
247. James Cuno, The Whole World's Treasures, BOSTON GLOBE, Mar. 11, 2001, at E7.
248. See UNIDROIT Convention, supra note 156, Art. 10, at 1335 (stating that the Convention applies only to property stolen or illegally exported after the Convention is entered into force for both the requesting country and the country where the claim is being brought).
249. See id.
250. See Lehman, supra note 98, at 547.
251. See generally Christa L. Kirby, Stolen Cultural Property: Available Museum Responses to an International Dilemma, 104 DICK. L. REV. 729 (2000) (arguing for the development of an international agreement on how museums should respond to the problems of stolen and illegally excavated cultural property). This comment also notes that the International Council of Museums ("ICOM") promulgated its own code of ethics, which specifically addresses the issue of acquiring stolen or illegally excavated objects, and that "ICOM advocates for museums to not acquire through any means an object for which they cannot obtain clear title or cannot be certain that the object was exported legally. ICOM further proposes that museums cooperate with requests from countries of origin under the UNESCO and Hague Conventions." Id. at 739.
252. Lehman, supra note 98, at 545.
253. Compare UNIDROIT Convention, supra note 156, Art. 3, at 1331, with Cuba, supra note 65, at 455-60.
254. Compare UNIDROIT Convention, supra note 156, Art. 3, at 1331, with Cuba, supra note 65, at 455-60.
255. Compare UNIDROIT Convention, supra note 156, Annex, at 1339, with 19 U.S.C. § 2601(2) (1998).
256. Compare UNIDROIT Convention, supra note 156, Annex, at 1339, with 19 U.S.C. § 2601(2) (1998).
257. See UNIDROIT Convention, supra note 156, Art. 8, at 1334.
258. See Status Report, UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, at http://www.unidroit.org/english/implement/I-95.htm (last modified Mar. 1, 2002). As of March 1, 2002 the following countries had signed the UNIDROIT Convention: Burkina Faso, Cambodia, Côte d'Ivoire, Croatia, France, Guinea, Hungary, Italy, Lithuania, Zambia, Georgia, Finland, Portugal, Paraguay, Switzerland, Romania, Pakistan, Netherlands, Peru, Bolivia, Senegal, and Russia. Id.
259. See id. As of Mar. 1, 2002, the following countries had ratified the UNIDROIT Convention: Lithuania, Romania, Paraguay, Peru, Hungary, Bolivia, Finland, Italy, and Croatia. Id.
260. See id. As of Mar. 1, 2002, the following countries had acceded to the UNIDROIT Convention: China, Ecuador, Brazil, El Salvador, Argentina, and Norway. Id.
261. See Phelan, supra note 200, at 57 (noting the importance of an international agreement to the universal value and protection of cultural property).
262. See Lehman, supra note 98, at 548-49 (declaring that all world nations need to make an effort to reach a global compromise, and that an effective international agreement like UNIDROIT could achieve this result).