“Art” is famously difficult to define. To many artists, a definition is either a challenge or an offense. For the art trade, the working definition is pragmatic and fluid – art is a tangible object embodying the creative efforts of one or more individuals, generally in certain traditionally recognized media such as painting and sculpture, but also ceramics, textiles, and, increasingly, conceptual art and art in new media. The term “cultural property” developed from a need to recognize a broader body of objects, which includes artworks, but is not limited to artworks. Cultural property also includes antiquities, books, manuscripts, scientific collections, collections of books or archives, monuments of architecture, groups of buildings, and archeological sites.  It has further expanded to include ethnological and paleontological objects.

The term “cultural property” was first used in an international instrument in the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict.1 The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property2 expanded the protection afforded to cultural property to include peacetime, and identified cultural property as “property which, on religious or secular grounds, is…of importance for archaeology, prehistory, history, literature, art or science.”     

The norms and legal regimes that structure and govern the ownership of and trade in much cultural property have undergone tremendous change since 1970, and they remain highly fluid.  Significant shifts have occurred in both national ownership laws and restrictions on export and import of certain classes of cultural property,3 and in international agreements restricting the transfer of certain classes of materials.4 Transactions in cultural property generally, and ancient objects specifically, are evaluated in a variety of ways and scrutinized differently than was frequently true in the past.

In a recent article, James Cuno, argues, as he has many times before,5 that calls for the return (or repatriation) of ancient objects held in public and private collections in generally western countries are, at base, parochial, narrowly political and nationalistic. “In an era of globalization that is nonetheless marked by resurgent nationalism and sectarianism,” Cuno writes, “antiquities and their history should not be used to stoke such narrow identities… Cultural property should be recognized for what it is: the legacy of humankind and not of the modern nation-state, subject to the political agenda of its current ruling elite.”6 Cuno is an articulate and accomplished advocate for the encyclopedic museum and the principle of cultural exchange. He is the President and CEO of the J. Paul Getty Trust, and the former director of the Harvard Art Museums, the Courtauld Institute of Art, and the Art Institute of Chicago. “[C]laims on the national identity of antiquities,” he writes, “are at the root of many states’ cultural property laws, which in the last few decades have been used by governments to reclaim objects from museums and other collections abroad.”7

The best-known objects of repeated calls for repatriation, of course, are the Parthenon Marbles (also called the Elgin Marbles), which are the collection of frieze sculptures and metopes that were removed from the Parthenon on the Athenian Acropolis by Thomas Bruce, the seventh Earl of Elgin in the early 19th century. Elgin’s men removed the objects under a firman granted to Elgin by the Ottoman government, then occupying Greece. Writers still argue over whether Elgin exceeded the authority granted by the firman.8 The British government purchased the sculptures from Elgin in 1816, and they have resided in the British Museum since that time. The Greek government has called for the return of the sculptures since Greece secured its independence in 1832.

Tantalizing and dramatic as disputes such as those over the Parthenon Marbles are, existing international instruments generally do not reach them, since those instruments are relative latecomers and do not apply retroactively. Disputes over objects like the Parthenon Marbles (between the U.K. and Greece) and the Bust of Nefertiti (between Germany and Egypt) are more political than legal disputes.

Where the international instruments and various bilateral agreements do apply is:

(i) to the destruction and looting of cultural and archaeological sites during armed conflict9 and, more broadly,
(ii) to the looting of cultural and archaeological sites and the illicit trafficking in such objects, including during peacetime.10

In many discussions, the term “looted” is used loosely and confusedly, confounding two distinct sources of illegality – stolen objects and truly “looted” or otherwise “illicit” objects. Stolen objects are those that have been “documented as once in a known collection from which they were abstracted by theft,” whereas, illicit objects are those that have been “clandestinely excavated and illegally exported antiquities, for which there is naturally no specific record.”11 More particularly, “looted” objects are, by some definitions, exclusively archaeological in origin, being “the illicit, unrecorded and unpublished excavation of ancient sites to provide antiquities for commercial profit.”12

The motivation behind these international instruments is not nationalism. Rather, it is the need to curtail looting of archaeological sites and the illicit trafficking in those looted artifacts. While looting does transfer certain, usually aesthetically desirable, objects to the safety of private collections and museums, it destroys the context of the archaeological site itself, and, with it, all that could have been learned from that context. Archaeological fieldwork is done through the “stratigraphic excavation” – the minute study of objects, sites, placement, and soils, which individually may provide some information, but taken together allows archaeologists, sociologists, ethnographers, and other scientists and scholars, to reconstruct the past. The archaeologist Robin Rhodes explains the significance of context, noting that “if [a] late sixth-century BCE vase came from the kitchen of a late sixth-century Athenian house it tells one story; if it was found in a fourth-century BCE or even a sixth-century BCE Etruscan tomb in Italy, it tells something altogether different.”13

And yet Cuno’s point about the political use and abuse of the past, through monopolization of rights to archaeological digs and access to artifacts, is correct, although not universal. “[I]f every antiquity were confined to its country of origin,” the archaeologist Colin Renfrew has written, “the wider world would never learn anything of Greek art, or Egyptian art or Maya art. It would be a pity if the culture and heritage of a country could be sampled and appreciated only by those with the means and opportunity to visit that country.”14

Even with the international instruments and bilateral agreements in place, looting and illicit trafficking in ancient objects continues. After a number of scandals reached into prominent parts of the antiquities trade and a number of prominent museums,15 the museum community adopted ethical guidelines discouraging the acquisition (either by purchase or by gift) of antiquities that lack documentation showing that they were either out of their country of modern discovery prior to 1970 or were subsequently legally exported from that country of origin. If the necessary provenance documentation is lacking, the object is regarded as suspect, and likely looted. This has resulted in the problem of “orphan” or unprovenanced antiquities. No consensus has yet emerged on how to treat these orphan objects. Dealers and collectors object to works being deemed tainted without evidence of wrongdoing. However, scholars remain skeptical of the claims of the market, finding the lack of documentation and transparency problematic.

As Renfrew has pointed out: “The underlying problem so far as antiquities are concerned is that the supply of legitimate antiquities is minimal. Very few countries currently have a system whereby antiquities of limited importance, once legitimately excavated and published, may be legally sold, although this has been advocated by some serious commentators. . . . As a result the bulk of antiquities offered for sale by dealers are unprovenanced. . . Nothing could be more telling, for instance, than the extraordinary flow of Chinese antiquities in recent years, most of them passing through Hong Kong.”16

Without a ready resolution of the problem of unprovenanced antiquities, dealers, collectors and museums are right to be cautious. A heightened attention to due diligence is required, as well as careful attention to proper documentation and expert advice.

1 Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 240 (1954) (the “Hague Convention”). up
2 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Nov. 14, 1970, 823 U.N.T.S. 231 (1972), reprinted in 10 I.L.M. 289 (1970) (the “UNESCO Convention”). up
3 U.S. v. McClain, 545 F.2d 988 (5th Cir. 1977); U.S. v. An Antique Platter of Gold, known as a Gold Phiale Mesomphalos c. 400 B.C., 184 F.3d 131 (2d Cir. 1999); U.S. v. Schulz, 333 F.3d 393 (2d Cir. 2003). up
4 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, June 24, 1995 (the “UNIDROIT Convention”); Convention on the Protection of the Underwater Cultural Heritage, Nov. 2, 2001, 41 Int’l Legal Materials 40 (2002) (the “Underwater Cultural Property Convention”); Convention Concerning the Protection of World Cultural and Natural Heritage, Nov. 16, 1972, 1037 U.N.T.S. 151 (1972) (the “World Heritage Convention”). up
5 Cuno has previously discussed these issues and others more expansively in Who Owns Antiquity: Museums and the Battle over Our Ancient Heritage (2008), Whose Muse? Art Museums and the Public Trust (2004), Museums Matter: In Praise of the Encyclopedic Museum (2011), and Whose Culture? The Promise of Museums and the Debate over Antiquities (2009). up
6 Id. up
7 Id. up
8 See., e.g., John Henry Merryman, Thinking About the Elgin Marbles: Critical Essays on Cultural Property, Art and Law (2000); Christopher Hitchens, The Parthenon Marbles: The Case for Reunificiation (1987). up
9 See, e.g., The Hague Convention. up
10 See, e.g., The UNESCO Convention, the UNIDROIT Convention, the Underwater Cultural Heritage Convention, and the World Heritage Convention. up
11 Colin Renfrew, Loot, Legitimacy and Ownership 79 (2000). up
12 Colin Renfrew, Loot, Legitimacy and Ownership 15 (2000). up
13 Robin Rhodes, ed., The Acquisition and Exhibition of Classical Antiquities: Professional, Legal, and Ethical Perspectives 6 (2007). up
14 Renfrew at 21. up
15 The revelations about looted antiquities and the path for such objects from the black market, into the gray market, and ultimately into prominent private and public collections that came to light after the arrest of Giacomo Medici have been extensively documented by, among others, Jason Felch and Ralph Frammolino, Chasing Aphrodite: The Hunt for Looted Antiquities at the World’s Richest Museum (2011), and Peter Watson and Cecilia Todeschini, The Medici Conspiracy: The Illicit Journey of Looted Antiquities from Italy’s Tom Raiders to the World’s Greatest Museums (2006). up
16 Renfrew at 36. up