Stealing beauty: stopping the madness of illicit art trafficking.

• Author: Chang, David N.

1. INTRODUCTION II. CONCEPTUAL AND FACTUAL BACKGROUND AND ANALYSIS A. Risky Business: Black Market Art Trade Will Never Be Completely Eliminated B. Beauty Is in the Eye of the Beholder: Defining Cultural Property and the Effect on Regulatory Application and Interpretation III. THE GRAND ILLUSION: CULTURAL NATIONALISM AND INTERNATIONALISM ARE NOT MUTUALLY EXCLUSIVE IV. PROTECTION OF CULTURAL PROPERTY A. International Agreements 1. The 1954 Hague Convention 2. The 1970 UNESCO Convention and Its Implementation in the United States 3. The 1995 UNDROIT Convention B. Cultural Property Protection in the United States 1. The Role of Criminal Law 2. Civil Protection 3. Common Law Replevin C. Proposals 1. Economic Incentives and Preventing Entry to the Black Market 2. International Art Funds V. CONCLUSION I. INTRODUCTION

   The looting of museums in Iraq during the war on terrorism (1) and the recent theft of Munch's "The Scream" and "Madonna" (2) have once more thrown into the world's spotlight the issues of illicit art trade, its prevention, and repatriation. Governments around the world have recognized the importance of identifying and preserving each nation's cultural heritage and have enacted national legislation and international conventions to facilitate international cooperation toward those ends. (3) The purpose of these enactments is two-fold: the laws attempt 1) to deter theft of "cultural property" and 2) to facilitate repatriation of the property when appropriate. (4) In spite of heightened awareness and the implementation of preventive schemes within and among nations, the problem of black market art trade persists. (5) Based on extrapolations of incidents reported to major police organizations, illicit art trade generates billions of dollars in transactions each year. (6)

   The still dominant conceptual framework conceived by John Merryman for analyzing cultural property enactments rests upon a foundation of the binary opposition between cultural internationalism and cultural nationalism. (7) The former term denotes humankind's general interest in any given piece of cultural property, whose interest predominates over that of any nation, and correlates with the free movement of cultural property. (8) The latter term expresses the notion of a national interest in whatever may be considered "its" cultural property and correlates with restrictions on the international art market. (9) As will be explored in greater detail, Merryman reads two major international conventions as reflecting these competing concepts. (10) By extension, laws implementing such conventions and other national laws should also exhibit, to varying degrees, cultural nationalist and internationalist characteristics.

   This Comment begins by discussing in Part II the factual and conceptual background of the international regulation of art theft. Subpart II.A discusses the significance of defining cultural property in determining regulatory scope. Subpart II.B describes the nature and causes of black market trade in stolen art. Part III discusses and critiques the theories of cultural nationalism and cultural internationalism, which are the two basic theories underpinning policies regarding regulation of the art trade and the repatriation of stolen cultural property. Part IV analyzes, criticizes, and recommends improvements to the laws that attempt to deter entry of cultural property into the black market and facilitate recovery of that property once it does so. Part V suggests that the goals of cultural property laws may never be achieved, but perhaps the worthier part is the dialogic process by which national officials, art dealers, museum administrators, lawyers, and academics alike contribute to the cultural property debate and the evolving legal framework.

2. CONCEPTUAL AND FACTUAL BACKGROUND AND ANALYSIS

   1. Risky Business: Black Market Art Trade Will Never Be Completely Eliminated

      The income generated by illicit trade in art has been estimated to be as high as 6 billion dollars per year. (11) The loot comes from private collectors, public museums, churches, and archaeological sites, both discovered and undiscovered. (12) Only five to ten percent of objects are recovered, (13) and based on recovery data from The Art Loss Register, even when recovery succeeds, it takes an average of 13.4 years. (14) The international scope of art theft continues to expand. (15)

      As with any illegal market, precise numbers are difficult to calculate (16) because often thefts remain unreported, (17) settle without publicity, or remain undiscovered until the property emerges on the official art market. (18) To further complicate monetary estimates of the value of the black market trade, "[a]rt that has been off the market for many years is difficult to value." (19) Often, institutional owners do not officially negotiate with thieves so as not to encourage the theft of art for ransom. (20) However, because their primary concern is for the safe return of the property, these same institutions frequently offer "finders fees" to middlemen who aid in recovery. (21) Victims may also underreport thefts because it would signal their vulnerability to other thieves. Moreover, it is difficult to separate statistically the theft of cultural property from ordinary theft. (22) In spite of this uncertainty, news media often report that the scope of this criminal market ranks fourth after that of narcotics smuggling, arms trafficking, and money laundering. (23) Interpol itself, however, maintains that there is no solid statistical foundation for such a conclusion. (24) In spite of numerous legal deterrents, illegal trade in cultural property thrives because of overwhelming demand, (25) political instability in certain nations, (26) inconsistent laws regarding ownership and repatriation of cultural property, (27) increasingly permeable borders, (28) and improved methods of transportation. (29)

      For the convenience of discussion, objects that are the subject of the black market trade in cultural property may be separated into four general categories of origin: 1) theft from private or public owners, individual or institutional; 2) theft from known archaeological or excavation sites or national monuments; 3) theft from undiscovered sites; and 4) illegal exportation of objects from a source nation.

      The vulnerability of the first category of objects, those stolen from individuals and institutions, stems most notably from the prohibitively high costs of insurance and adequate security measures. (30) The cost of insurance is directly proportional to the value of the object, so the more famous and invaluable the work, the less insurable, and limited resources frequently result in less than state-of-the-art security employed by private and public owners. (31) For example, on August 22, 2004, two masked, armed robbers stole "The Scream" and the "Madonna" from the Munch Museum in Oslo. (32) Estimates of the value of the stolen work range from 83 million (33) to 100 million dollars for "The Scream" alone. (34) In August of 2003, Leonardo da Vinci's "Madonna with the Yarnwinder" was stolen from Drumlanrig Castle and has been valued at nearly 140 million dollars. (35) In 1990, two men gained entry to the Isabella Stewart Gardner Museum in Boston by impersonating policemen investigating a disturbance. (36) The thieves bound and gagged the guards and absconded with about 520 million dollars worth of art, including a Manet, three Rembrandts, several sketches by Degas, and Vermeer's "The Concert." (37) So far, none have been recovered. (38)

      The second and third categories of thefts from known and unknown sites result from a combination of the activities of subsistence looters and organized crime, (39) and both pose similar regulatory challenges. As difficult and costly as it is to administer physical protection to known sites or monuments, the protection of unknown archaeological sites is nearly impossible. Unfortunately, the greatest destruction to unique archaeological sites and national monuments occurs at the moment of excavation. (40)

      Subsistence looting (41) is endemic where a class of impoverished citizens can easily and profitably sell their nation's cultural patrimony on the black market. (42) In China, one heist can generate as much as a year's farming income. (43) In Iraq, strict economic sanctions since 1990 further exacerbate the desperation for cash. (44) Moreover, in the absence of financial incentive for reporting discovered artifacts on their property, landowners often opt to liquidate objects on the black market rather than risk loss of development value due to government excavation upon discovery of artifacts. (45) In light of the strong allure of looting and the impracticability of physical protection, many art-rich nations have enacted legislation claiming ownership and prohibiting the export of antiquities. (46) Combined with U.S. replevin laws, (47) for example, these declarations may provide a basis for recovering illegally exported cultural property.

      The final category of illegally exported objects implicates the procedures by which nations may seek repatriation of illegally exported objects regardless of whether the prior chain of transactions were legal. Absent other law, illegal exportation alone is insufficient grounds for maintaining a recovery action. (48) However, if a foreign nation establishes ownership of an artifact, it may recover the object via U.S. statutory or common law protections of cultural property or as simple stolen property. (49) U.S. courts have discretion to recognize ownership declarations of foreign nations. (50) For example, in United States v. McClain, the court analyzed Mexican ownership laws and relevant expert testimony to conclude that Mexico had declared ownership of pre-Columbian artifacts with sufficient clarity (51) to facilitate recovery under the National Stolen Property Act (NSPA). (52)

      Remedies like those available under...