1.

Protection of cultural heritage is incumbent on States; avoid international conflict;

encourage cooperation. Recommendation on International Principles Applicable to
Archaelogical Excavations, Unesco 5 Dec. 1956.
2. Preserve cultural property endangered by public or private works. Rec. on preservation of
cultural property endangered by public or private works, unesco
3. 2 unesco conventions that used cultural heritage. 1972 and R on protection at national
level of the cultural and natural heritage, unesco 16 nov. 1972
4. Publication: unesco cultural rights and wrongs
5. Lydian artifacts from the 7th Century B.C. were returned to Turkey in 1993 after the Met
admitted it had known the objects were stolen when they had purchased them. Turkey v.
Metropolitan Museum of Art, 762 F. Supp. 44 (S.D.N.Y. 1990)
6. Thus, in the Union of India v. The Norton Simon Foundation United States District
Court, Southern District of New York, 74 Cir. 5331; United States District Court, Central
District of California, Case No. CV74-3581-RJK. , the return of stolen "Siva Nataraja" to
India was postponed to enable the good faith acquirer, a United States collector, to
display it for ten years.
7. US v. McClain; US v. Hollinshead; moved pots and head from Mexico; thefts under
foreign laws.
8. Jeanneret v. Vichy, 693 F.2d 259 (2d Cir. 1982); Matisse painting bought cannot just
become part of Italian cultural heritage.
9. US v. McClain, 593 F.2d 988 (5th Cir. 1979): Mexico passed a state ownership law in
1972. Also, Guatemala (United States v. Hollinshead, 495 F.2d 1154, 1155-56 (9th Cir.
1974), Ecuador, and Costa Rica.
10. US v. Mclain: The court in McClain held that cultural property designated as owned by a
particular nation was incapable of private ownership or conveyance, and, therefore, those
trafficking in such items dealt in stolen goods, prohibited by the N.S.P.A.
11. For example, the case of Autocephalous Church v. Goldberg & Feldman Fine Arts, Inc.
involved mosaics removed from a Greek Orthodox church in the Turkish-controlled part
of Cyprus." The Turkish government had allowed removal and exportation of the
mosaics, which were ultimately imported into the United States by Goldberg & Feldman
Fine Arts, Inc. in 1988.88 The Greek Orthodox church, a legal citizen of the Greek part
of Cyprus, learned of the presence of the mosaics in the United States.
12. The contrast to the repatriation provisions and state-centered orientation of UNESCO
1970 is interesting. Nations and courts have demonstrated a willingness to return cultural
property to groups with whom it has a clear cultural affiliation, but not to governments
acting on behalf of such groups, as was the case in Ortiz94 and with the "Elgin" Marbles.
Attorney-General of New Zealand v. Ortiz, 2 W.L.R. 809 (H.L. 1983), afd 2 QB. 349
(Eng. C.A. 1982).
13. In United States v. Hollinshead, 495 F.2d 1154 (9th Cir. 1974), Hollinshead was
prosecuted for removing a stele from Machiquila, a Mayan site in Guatemala, contrary to
 Guatemalan law, and bringing it to the U.S., where he tried to sell it. His conviction
under the Federal Stolen Property Act, 18 U.S.C. 2314 (1952), was made possible only
because the archaeologist Ian Graham, who has spent much of his career documenting
Mayan sites in Mexico and Central America, had drawn and photographed the
Machiquila ruins before the stele's removal, clearly showing it in place on a critical date
(after enactment of a crucial Guatemalan law).
14. Jeanneret v. Vichey, 693 F.2d 259 (2d Cir. 1982), in which the purchaser of a Matisse
painting sought rescission and damages for breach of warranty of title because the
painting, purchased from its owners in New York, was bought from its Italian owner and
removed from Italy without an export permit. A trial judgment for the plaintiff purchaser
was reversed and remanded on appeal. Jeanneret v. Vichey, 541 F. Supp. 80 (S.D.N.Y.
1982).
15. Case 1 is simple because the painting was stolen from its owner. All moral and legal
systems recognize and enforce ownership and condemn and punish thieves. Rights of
ownership established under the law of one nation will be recognized and enforced by the
courts of another nation (subject, of course, to the possible rights of good faith purchasers
and the operation of statutes of limitation or rules of prescription). The case of
Kunstsammlungen zu Weimar v. Elicofon is an excellent example. Defendant Elicofon,
a Brooklyn lawyer, bought two paintings in good faith, unaware that they were Albrecht
Durer paintings and had been stolen from storage in Germany at the end of World War II.
The owner of the paintings, an agency of the East German government, sued for their
recovery in a federal court in New York and won. The East Germans won the case
because they owned the Durers. It was irrelevant that Durer was a German painter or that
the plaintiff art museum was an agency of the German Democratic Republic. The result
would have been the same if the paintings were by a Dutch master, or if the plaintiff-
owner were a private collector, or if the objects in question had been platinum ingots or
computers, rather than cultural property; the law similarly protects ownership of all kinds
of objects. Elicofon illustrates the imposing power of ownership: ownership impelled an
American court to order two important paintings bought in good faith and held for many
years in an American collection returned, without compensation, to an agency of a
socialist nation.
16. In continental Europe, however, the applicable rules are generally more favorable to
purchasers. See, e.g., Winkworth v. Christie, Manson & Woods Ltd., [1980] 1 All E.R.
1121 (applying Italian law in favor of good faith purchaser of painting against owner
from whom it was stolen).
17. Case 2 is different. The Poussin painting was not stolen from the owner. On the contrary,
the owner voluntarily sold the painting and was paid for it. The legal offense charged was
not theft, but violation of a French law prohibiting export by anyone, including the
owner. Courts do not routinely enforce foreign claims based on such laws; in the absence
of a treaty or other special legal provision, the source nation seeking the return of a
 cultural object that is legally obtained but illegally exported is limited to diplomatic or
executive channels.
18. King of Italy v. De Medici Tornaquinci, 34 T.L.R. 623 (Ch. 1918) (remedy granted for
Medici documents that were state papers and thus the property of the Italian government;
remedy denied for documents that were privately owned, although illegally exported
from Italy); Attorney-General of New Zealand v. Ortiz, 2 W.L.R. 809 (House of Lords
1983), affg, 3 W.L.R. 570 (Court of Appeal 1982) (remedy denied in action by New
Zealand to recover illegally exported Maori carving)
19. This is one of the reasons why the convictions in Hollinshead, 495 F.2d at 1154, and
McClain, 593 F.2d at 658, caused comment. Both were criminal prosecutions under the
United States Stolen Property Act. In Hollinshead, a stone stela was pried from a Mayan
temple in Guatemala; in McClain, beads and pots were taken from Mexico. In both cases,
a finding that the objects were stolen required that the court treat removal from the
foreign country as theft. The defendants in both cases were convicted by courts that
treated the foreign nations as owners. One of the arguments commonly made against
United States enforcement of such laws is that they give the foreign nation a "blank
check." Regardless of the merits or other facts, the nation that declares itself owner (of
anything? under any circumstances?) is treated as owner. See also an Italian decision:
Republica del Ecuador c. Danusso, Matta e altri, 18 Riv. di diritto internazionale privato e
processuale 625 (1982). The court ordered articles illegally exported from Ecuador
"returned" to the Government of Ecuador because they were its property under its generic
cultural property ownership law. The facts indicate that this may have been a typical
"rhetorical ownership law" since private individuals could acquire, retain, and transfer
these objects under Ecuadoran law.
20. The decision of the Supreme Court of Costa Rica reported in Boletin Judicial No. 90 of
12 May 1983, in which the Court considered the Law on the National Archaeological
Patrimony of 28 December 1981. Article 3 of that Law provided: "All archaeological
objects that are discovered in any way after this law takes effect . . . are the property of
the State." (translation of author). The court found this and other provisions of the Law
unconstitutional because they attempted to expropriate private property without
observing the procedures or providing the compensation required by the Costa Rican
constitution. (I am indebted to the Honorable Carlos Jose Gutierrez, Anbassador of Costa
Rica to the United Nations for this reference). Questions about the constitutionality of
such laws or about the procedural regularity of their enactment and execution cannot
ordinarily be raised in foreign proceedings as in Hollinshead, 495 F.2d at 1155-56, and
McClain, 593 F.2d at 658, for example, because of the act of state doctrine.
21. The 1970 UNESCO Convention, article 7(b), deals pragmatically with the problem of the
rhetorical law that declares state ownership by treating as "stolen" only objects taken
from "a museum or a religious or secular public monument or similar institution . . . ,
 provided that such property is documented as appertaining to the inventory of that
institution."
22. Article 7(b)(i): It seems that a number of European states have interpreted this as
meaning that they should institute customs controls at the frontiers to prevent such
import.