CULTURAL HERITAGE & ARTS REVIEW

Volume 2, Issue 1

Post-Confl ict Cyprus: A Call for Cooperative Efforts New Threats to Underwater Cultural Heritage plus Howard Spiegler: The Historic Urban Landcape Ramifi cations of Portrait Preservation & Changing of Wally Societal Needs Dr. Allan Gerson on the Konowaloff Litigation

A Renoir Dispute in Small Claims Court

and more! Cultural Heritage & Arts Review, Summer 2011

Editor-in-Chief Benjamin Bauer Editors Tess Davis Elizabeth Dillinger In this Issue... Jennifer Kreder What’s A Renoir Authenticity Case Doing In A Small Claims Court Like This? ....1 Mildred Stewart What the Lady Has Wrought: The Ramifi cations of the Portrait of Wally Case ....2 Sheila Ward Accounting for Bolshevik Looted Art: Moral and Legal Imperatives ...... 5 The Review is a publication of A Conference Report: Human Rights and Cultural Heritage ...... 7 the American Society of Inter- national Law’s Interest Group The Fine Art of Privacy in New York ...... 9 on Cultural Heritage & the Arts. PERVERSE SEA CHANGE: Underwater Cultural Heritage in the Ocean is Facing Chemical and Physical Changes ...... 12 Submissions Policy UNESCO to Recommend a New Approach for Protecting Historic Cities: Submissions are welcome Bringing Technocracy to the People? ...... 17 and will be published at the Beyond Protection: Cooperation as a Tool to Cope discretion of the editors. with Unresolved Cultural Heritage Issues in Post-Confl ict Cyprus ...... 22 Book Review: Protecting Cultural Property in Armed Confl ict ...... 35 We also encourage artists to Arts & Antiquities: Traffi cking News Notes ...... 38 submit their work for publica- tion as clip and border art. Please send submissions to [email protected].

Interest Group Leadership Welcome! Chair Jen Kreder A Note from the Editor Co-Vice Chairs Laina Lopez Welcome, readers! The past few months have been an exciting time of change for Lucille Roussin the Review. You’ve probably already noticed our fresh, new look. We’ve also ex- To get involved with the Inter- perienced some changes in the editorial staff. As the new Editor-in-Chief, I est Group please contact would like to express my sincere appreciation to the outgoing staff, especially Cris- Jennifer Kreder at [email protected] tian DeFrancia, whose extensive efforts in getting our young publication off the ground have played a pivotal role in the success that the Review has had so far. Subscriptions An electronic version of the While the content and mission of the Review remain the same, we have changed the Review is available free of format somewhat to showcase a single, more robust article in each issue. In this issue, charge to Members of the our feature article is an excellent piece by Dr. Alessandro Chechi about the effect of the Interest Group. Print editions are available for sale confl ict in Cyprus on the country’s historic cultural property. While legal mechanisms at www.asil.org/chareview. can provide some protection for cultural property, Dr. Chechi advocates for cooperative efforts as a necessary means for mitigating the continued destruction of Cypriot cultural Disclaimer property. You won’t want to miss our other articles either, which cover a broad range of Views contained in the Review subjects. Two, in particular, come to mind: Dr. Mark Spalding, an expert in the fi eld are those of the authors in their of marine conservation, has prepared an article discussing the effects of climate change personal capacity. The Ameri- can Society of International Law on underwater cultural heritage, and Justice Barbara Jaffe of New York has provided an and this Interest Group do not account of how a Renoir authenticity case ended up before her in small claims court. generally take positions on substantive issues, including Lastly, I’d like to express our appreciation for our sponsors, the Art Law Group those addressed in this peri- at Herrick, Feinstein, LLP and the Commission for Art Recovery, whose sup- odical. port has been instrumental in making this issue of the Review possible.

Cheers,

Ben Bauer Cultural Heritage & Arts Review, Summer 2011

What’s A Renoir Authenticity Case Do- ing In A Small Claims Court Like This? by Justice Barbara Jaffe The authenticity of a work of fi ne art is usually litigated in federal that the claimant failed to prove that he relied to his detriment on court or in the state higher trial courts, for, after all, large sums Sotheby’s opinion or that Sotheby’s controls the pertinent market. of money and important issues are often at stake. You can there- The claimant then sent me an angry letter along with a notebook fore imagine my surprise one evening as I presided in the Small fi lled with documentation. Given his passion and apparent sincer- Claims Part of the New York City Civil Court and was presented ity, not to mention my background in art history and willingness with a case involving an alleged pastel by Pierre-Auguste Renoir. to plunge into the issues, I decided to write a decision addressing all of the possible causes of action arising from the evidence. I Before me stood a tall, lanky man. Behind him in the audi- took pains to describe how the evidence was either inadmissible or ence sat his supporting entourage. The case card showed that unreliable when measured against the applicable legal standards. the man was suing Sotheby’s for $5,000, the court’s jurisdic- The claimant’s sole evidence of the picture’s provenance was his tional limit, on the ground that Sotheby’s had failed to rec- testimony that he had purchased the picture in 1993 from an un- ognize that his picture is a genuine Renoir pastel study of identifi ed dealer who told him that it came from an unidentifi ed “The Bathers,” a Renoir oil painting. Appearing for Sotheby’s estate. He only had one real expert, one whose area of expertise was was John Cahill, of Lynn & Cahill, New York, New York. not in pastels or Renoir. His other witnesses were amateurs, and his documentary evidence was both insuffi ciently authenticated For the next hour or so, I listened to the claimant and his and addressed to the medium of the picture rather than its artist. witnesses describe how Sotheby’s had defamed his pic- ture and destroyed his chances of, if not selling the picture, I also explained that it made no sense to pursue such a claim in then educating the world about it. The claimant’s passion the Small Claims Court, and I questioned whether the claimant and sincerity were apparent, as was his lack of understand- had sought a favorable ruling from me just to buttress his claim. ing of the law and how to prove authenticity and defamation. As the rules of evidence are relaxed in the Small Claims Part, it is easier to prove authenticity there. Hearsay evidence is admissible, Many of us have been disappointed to learn that others fail to for example. But even if I found in the claimant’s favor, and even appreciate something that we value. If not a work of art or some if I awarded him a $5,000 judgment, that would have been the palpable possession, it could be a talent or skill. Why won’t Hol- end of it – a small claims judgment is not “an adjudication of lywood produce my script? Why can’t I publish my book? Why any fact at issue.” (New York City Civil Court Act § 1808). In can’t I be the next American Idol? Likewise, the claimant before me other words, a small claims judgment has no res judicata effect. that evening in Small Claims Court was asking, essentially, “Why doesn’t Sotheby’s recognize that this is a genuine pastel by Renoir?” Thus, while the claimant was free to seek a judgment far be- low what may have been the actual value of the picture, given The answer lies in understanding that there must be objective crite- that the purpose of the Small Claims Court is to facilitate ria for assessing the value of a work of art. While gold and silver can the handling of minor claims without the need to hire a law- be weighed, and the carat-weight of a diamond can be measured, yer, he was in the wrong court. His claim was hardly minor, the assessment of the value of a work of art is less defi nite, and it is and it ought not to have depended on evidence that would this lack of defi niteness that inspires the hope that the picture owned not meet the more rigorous evidentiary standards of the higher is authentic. Hope is insuffi cient, however, to prove authenticity. courts. If the picture is indeed a Renoir pastel, its authenticity should be proven with reliable, admissible evidence and quali- In court, we attempt to resolve disputes and measure claims fi ed experts. Finally, I noted that the claimant had recourse to against legal standards that are, at best, mere approxima- the International Foundation for Art Research (IFAR), a non- tions gleaned from human experience, which changes over profi t organization that provides low-cost research assistance in time. But legal standards serve an important purpose. With- instances where the authenticity of a work of art is in dispute. out them, there would be little certainty regarding judicial outcomes, and a chaotic, judicial anarchy would reign. And The decision, Kitchen v Sotheby’s, is available at 18 Misc 3d so, the Renoir claim failed because the claimant did not sat- 1132(A) (N.Y.C. Civ. Ct.) (accessible from WestLaw by search- isfy the legal standards for proving the authenticity of his pic- ing for 18 Misc 3d 1132 and scrolling down the resulting list ture or the other causes of action arising from his allegations. of decisions), at 2008 NY Slip Op 50264(U) (at http://www. nycourts.gov/reporter/slipidx/miscolo_2008_February.shtml), I rendered a brief decision dismissing the claim on the grounds and in the New York Law Journal, March 19, 2008, at 29, col 1.

1 Cultural Heritage & Arts Review, Summer 2011

What the Lady Has Wrought: The Ramifi cations of the Portrait of Wally Case by Howard N. Spiegler On July 20, 2010, on the eve of trial, the case of United States v. Portrait of Wally, which our fi rm litigated for more than ten years, was fi nally resolved by stipu- lation and order.1 The U.S. Attorney in Manhattan commenced the case in the fall of 1999 by seizing the painting, Portrait of Wally by Egon Schiele (“Wal- ly”), while it was on loan for exhibition at the Museum of Modern Art in New York. The case has been credited with awakening governments around the world, as well as museums, collectors, and others in the global art community, to the problem of Nazi-looted art almost seventy years after the beginning of the Nazi era in Europe. Although this case will surely be commented on and ana- lyzed for many years to come – includ- ing in a documentary fi lm due to be released in the spring – as the attorneys for the claimant in the case, we thought it would be helpful to provide some thoughts from our unique vantage point. Schiele Self-Portrait. (Public Domain, via Wikimedia Commons.) a Schiele collector, to help her get her artwork on loan from out of state. The painting back, but instead he arranged case worked its way up to the state’s high- Basics of the Case to acquire it himself and refused her est court, which ruled in MoMA’s favor. Herrick, Feinstein represented the Estate demands to return it to her. Ms. Bondi of Lea Bondi Jaray throughout the litiga- Jaray died in 1969. tion. Ms. Bondi Jaray was a Jewish art Immediately thereafter, the U.S. Attor- ney for the Southern District of New dealer in Vienna who fl ed for London in Eventually, Leopold established the Le- York commenced an action to have the 1939 after her gallery was “Aryanized” opold Museum in Vienna and Wally be- Leopold Museum forfeit on the by a Nazi agent. She was also forced by came part of its collection. In the 1990s, Wally him to give up a prized personal posses- Leopold made the fateful decision to loan ground that it was stolen property unlaw- sion that she kept in her home: Egon several of the Museum’s Schiele works, fully imported into the United States. The Schiele’s haunting portrait of his lover including Wally, to the Museum of Mod- U.S. Customs Service seized the paint- and favorite model, Wally Neuzil. After ern Art (MoMA) in New York. In early ing, marking the start of more than ten the war, Wally was mistakenly mixed in 1998, near the end of the exhibition, Ms. years of litigation during which Herrick with the artworks of Heinrich Rieger, a Bondi Jaray’s heirs notifi ed MoMA of worked closely with the U.S. government collector who had perished in a con- their claim and then contacted the Dis- in its attempts to recover the painting and centration camp. Along with Rieger’s trict Attorney of New York County, who return it to the Estate of Lea Bondi Jaray. artworks, Wally was transferred by Allied subpoenaed the painting in connection troops to the Austrian government. with a criminal investigation that he com- This article, authored by Howard N. Spie- Wally ended up at the Austrian National menced to determine if Wally constituted gler, a partner and co-chair of the Art Law Gallery (the Belvedere) despite the fact stolen property present in New York in vi- Group of Herrick, Feinstein LLP, a New York that it clearly had never been part of olation of New York law. MoMA moved based law fi rm, fi rst appeared in the Group’s the Rieger collection. Ms. Bondi Jaray to quash the subpoena on the ground newsletter, Art and Advocacy, Fall 2010, later asked Rudolf Leopold of Vienna, that New York law prohibits seizure of an Volume 7, and is reprinted with permission.

2 Cultural Heritage & Arts Review, Summer 2011

What the Lady Has Wrought: The Ramifi cations of the Portrait of Wally Case (cont’d)

The case was fi nally settled a week before trial was sched- 2. The Role of the U.S. Government uled to begin. Most of the issues in the case had been re- in Nazi-Looted Art Matters solved by motion last fall and the sole remaining is- What most distinguishes the Wally case from the many subse- sue for trial was whether Leopold knew that Wally was quent cases brought to recover Nazi-looted art is the fact that stolen when he, through the Leopold Museum, import- it was commenced by the U.S. government. Indeed, critics ed it into the United States for the MoMA exhibition. of the case repeatedly questioned why the government was committing substantial resources to what some considered Ramifi cations of the Case and Its Settlement to be nothing more than a title dispute between the Leopold Rather than attempting to analyze the many legal issues pre- Museum and the Bondi Jaray family – a dispute that should sented by the case, we highlight here several key points that have been resolved in a civil lawsuit between them. Indeed, concern the importance of Wally to Nazi-looted art claims they asked why the government was involved at all. worldwide. This question is critically important because it raises the issue 1. Helping to Bring the Problem Posed by Nazi-Looted of whether the United States and other governments should Art to the Forefront play a signifi cant role in trying to resolve Nazi-looted art claims. The commencement of the New York State and federal litiga- Despite the misgivings expressed by many, it is clear that this tion in the Wally case “changed everything,” as a recent head- civil forfeiture action was consistent with, and fully promoted, line in the Art Newspaper declared. The fact that a loaned the express public policy interests of the United States regarding artwork at MoMA could be seized by U.S. government Nazi-looted art. The government’s complaint alleged that Wally authorities sent shockwaves throughout the world and was a was stolen by a Nazi agent from Lea Bondi in 1939, wrong- major factor in causing governments, museums, collectors, fully acquired by Leopold, and then knowingly imported by and families of Holocaust victims to focus their attention on the Leopold Museum into the United States in violation of the Nazi-looted art. It helped open a global reexamination of the National Stolen Property Act. In other words, what was al- massive looting of art fomented by the Nazi regime, as well leged against the Leopold Museum was that it knowingly traf- as the post-war policies of the U.S. and European govern- fi cked stolen property in the United States. After an exhibi- ments that were purportedly designed to deal with looted art tion at one of this country’s foremost museums, the Leopold recovered from the Nazis but, in many cases, resulted in the was going to take this stolen property out of the country, failure to return it to its true owners. while the heirs of the true owner, among them several U.S. citizens, stood by helplessly. The heirs could not ask a court A specifi c outgrowth of this renewed interest, and an im- to attach the property pending a resolution of the matter be- portant stimulus to its further development, was the adop- cause New York State law immunizes from judicial seizure art tion in 1998 by 44 nations of the Washington Principles loaned from outside New York. So the U.S. government acted concerning Nazi-looted art. One principle states that pre- to assure that the stolen property did not leave the country. war owners and their heirs should be encouraged to come As former Chief Judge (and later Attorney General) Michael forward to make known their claims to art that was confi s- B. Mukasey determined in one of the early decisions in the cated by the Nazis and not subsequently restituted; another case: “On its face, [the National Stolen Property Act] proscribes states that once they do so, steps should be taken expedi- the transportation in foreign commerce of all property over tiously to achieve a just and fair solution. This led several $5,000 known to be stolen or converted. Although the mu- European governments to create restitution commissions to seum parties and amici would have it otherwise, art on loan to a examine or reexamine claims by victims and their families. museum – even a ‘world-renowned museum’ – is not exempt.” Museums all over the world, as well as governments with art Explaining further, the court added that “if Wally is stolen or collections of their own, started placing on the Internet im- converted, application of [the National Stolen Property Act] ages and information about artworks in their collections for will ‘discourage both the receiving of stolen goods and the ini- which there was a gap in ownership history, or provenance, tial taking,’ which was Congress’s apparent purpose.” The court between the years 1933 and 1945, asking those with further concluded that “there is a strong federal interest in enforcing information about these works to contact them and perhaps these laws.” But the U.S. government’s interest in discourag- make a claim for recovery. Claims to recover Nazi-looted ing the traffi cking of stolen goods is only part of the story. The art have been brought all over the world over the past dec- United States also led the way in urging governments around ade. And each year, new litigations are commenced, especially the world to develop methods to effectuate the policy of iden- in the United States, and many settlements are announced. tifying Nazi-looted art and returning it to its rightful owners.

3 Cultural Heritage & Arts Review, Summer 2011

What the Lady Has Wrought: The Ramifi cations of the Portrait of Wally Case (cont’d)

It was the U.S. government that convened the 1998 confer- 3. The Settlement Terms ence of government offi cials, art experts, museum offi cials, and Since this case involved the resolution of a government forfei- other interested parties from around the world to consider and ture action, there was little question that the settlement would debate the many issues raised by the continuing discovery of be fi led with the court and its terms open to public scrutiny Nazi-looted assets including artworks, resulting in the prom- and review. This is rarely the case in private civil litigations, ulgation of the Washington Principles. The U.S. government however, where the confi dentiality of the terms of settlement continued its participation in this area by playing a critical role is almost always agreed to by both parties. As a result, the in the 2009 Holocaust Era Assets Conference that took place public has been made aware not only of the precise amount in the Czech Republic and joining in the Terezin Declaration, of monetary compensation paid to the Bondi Jaray Estate by which reaffi rmed and expanded the Washington Principles. the Leopold Museum (refl ecting the painting’s market value), but also of the non-monetary settlement terms, including the One of those principles encouraged the resolution of these dis- opening ceremony and temporary exhibition of Wally at the putes by “alternative dispute resolution,” where possible, to avoid Museum of Jewish Heritage in New York before it was trans- long, drawn-out litigation. Throughout the Wally litigation, ported to Austria, and the specifi c signage that must accom- there was criticism that this lengthy litigation in state and fed- pany Wally at any exhibition sponsored by the Leopold Mu- eral courts was the wrong way to go about resolving Nazi-looted seum, either at the Museum or anywhere else in the world. art claims. But alternative dispute resolution is not always pos- sible, particularly where one of the parties is unwilling to par- It is important to recognize that Nazi-looted art claims in- ticipate in good faith. In the Wally case, the U.S. government volve very deep emotions occasioned by the horrifi c experi- brought the forfeiture action to prevent the Leopold from send- ences of the claimant families during the Holocaust. As a re- ing the painting to Austria, thus placing it beyond the reach of sult, even where a claim can be resolved by payment of the full any plausible attempt at resolution. Furthermore, the Austrian value of the claimed artwork, other interests of the claimant government, while adopting a law in 1998 that purportedly was must often be satisfi ed before the case can be settled. These designed to ensure the careful review of claims for Nazi-looted interests include “correction of the record” concerning the artworks in the Austrian government’s possession, had deter- true provenance of the artwork, and providing public and mined that, as a “private foundation” under Austrian law, the permanent recognition of the true historical facts. The im- Leopold Museum was not covered by that statute (despite the portance of exhibiting the artwork at a museum dedicated to fact that the Austrian government provided a substantial amount the remembrance of the Holocaust, even temporarily, cannot of its funding and appointed half of its board of directors). be overstated. Thus, potential settlements of Nazi-looted art claims should always give heed to the importance of recog- In any litigation it is usually in all of the parties’ interests to nizing the emotional needs of the claimants to try to correct reach a mutually acceptable resolution as early as possible. But the historical, but still deeply felt, injustices of the Nazi era. as is often the case, it is only after the court issues a decision resolving many of the issues in the litigation, as happened in 4. The True Impact of the Case the Wally case last fall, that the parties become better focused The real importance of the Wally case, however, is what it means on the likely outcome of the case. But regardless of when this for both claimants and possessors of Nazi-looted artwork. First, case was fi nally settled, commencing this forfeiture action and it sends a clear message throughout the world that the U.S. gov- securing the artwork in the United States certainly promoted ernment will not tolerate traffi cking of stolen property within the U.S. government’s interest in fairly resolving these cases and its borders and will commit the resources required to see that preventing the traffi cking of property looted in the Holocaust. the victims of looted art are treated appropriately. Second, it tells the families of Holocaust victims everywhere that they can One fi nal note about the U.S. government’s role in these cases. stand up for their rights and persevere even in the face of intran- Although the government sometimes takes a position adverse sigence and procrastination by the current possessors of their to the claimants in these kinds of cases, especially where a for- property. When their efforts seem hopeless, let them remember eign government is the party in possession of the disputed art- Wally. work and issues relating to sovereign immunity are involved, an important lesson of the Wally case for potential claimants is not to ignore the very helpful and often critical role that the U.S. government can play with respect to individual claims. 1. See United States v. Portrait of Wally, 663 F. Supp. 2d 232 (S.D.N.Y. 2009).

4 Cultural Heritage & Arts Review, Summer 2011

Accounting for Bolshevik Looted Art: Moral and Legal Imperatives By Allan Gerson The rightful ownership of two French changed hands over the years, ulti- plicitly prohibited the expropriation impressionist paintings valued at ap- mately coming into the possession of of property not tied to military neces- proximately $300 million hinges on Yale and the Metropolitan Museum sity during times of war. From this the outcome of two landmark cases through extremely generous bequests war-time prohibition naturally flows currently in litigation. The first claim that are nevertheless questionable as the presumption that international contests Yale’s ownership of Van Gogh’s a result of their historical baggage. law similarly condemns the expropria- The Night Café, which Yale University tion of property during times of peace has retained since it came into its pos- Although both Yale and the Museum without just compensation. Both sce- session by virtue of a bequest in 1961. appear to have had reason to suspect narios arguably can be viewed as theft The second claim challenges the Met- that these paintings might not be of and thus as a basis for holding states ropolitan Museum of Art’s (the “Mu- pure pedigree, they nonetheless ac- accountable under the laws of eminent seum”) retention of Cezanne’s Madame cepted the valuable art. When con- domain in connection with confisca- Cezanne in the Conservatory, which the fronted by Mr. Morozov with the Van tion of private property. The protec- Museum acquired by way of a similar Gogh’s stolen origins, Yale reacted by tion of cultural property, specifically, bequest. While questions of owner- filing an action to quiet title. It ar- has been fortified throughout the last ship may seem conventional, some is- gued that the Act of State doctrine century in the 1954 Hague Convention sues involving a proper understanding and the statute of limitations validated for the Protection of Cultural Property of the evolving nature of international its claim of ownership. While I will and additional codification recogniz- law have been presented in both cases. not, in this paper, guess at or impugn ing the importance of cultural proper- the underlying motives of either of ty as a fundamental aspect of cultural In 1918, the Russian Bolshevik revo- the specific parties in this litigation, heritage. Indeed, it is arguable that lutionary regime confiscated the two I can speak to the issue of social re- its importance transcends traditional paintings from the Morozov family, to sponsibility and the attitudes that property rights and that it should be which Pierre Konowaloff is heir and we, as a society, want our universi- viewed by the law as a human right. which had theretofore retained the ties and museums to espouse. In my paintings in a museum-like setting, al- opinion, whether the institutions of Conversely, of course, characteriz- lowing the public full access. During higher learning to which we send our ing retention of cultural property as 1918, Russia was engaged in civil war. children for educational and personal a human right might be seen as un- Despite international law prohibiting development and in which we place fairly constraining the state, and the pillaging of art and cultural prop- valuable cultural material have an el- that uncompensated confiscation erty, the Bolsheviks saw fit to lay claim evated duty to be especially careful should be treated as a state right be- to privately-owned treasures. This about the provenance of cultural work yond the reach of international law. confiscation, without compensation that they acquire by purchase or gift and by force, mirrored the same type is a proper matter of public concern. of theft that would occur only fifteen Allan Gerson is Chairman of AG In- years later in Nazi-controlled terri- Museums and universities aim at at- ternational Law, PLLC, a Washington, tory during World War II. The mas- tracting the interest and curiosity of D.C., fi rm specializing in complex is- sive public outcry that ensued over young minds – they exist for the ben- sues of international law and politics, Nazi cultural theft helped to ensure efit of the public to inspire and to and serves as counsel for Mr. Pierre that much of that property was even- educate, and they obviously should Konowaloff. Given the pendency of tually returned to its rightful owners conduct themselves in keeping with the litigation, the facts as they are pre- (though identification and return of the highest standards. Wholly apart sented have already appeared in public- such stolen art continues to occur). from this, it is for the courts to re- ly available court documentation. This The lesser-known atrocities perpe- solve legal questions concerning the article refl ects the sole opinion of the trated by the Bolsheviks have yet to scope and definition of individual author and is not representative in any strike a similar chord in the public at rights relating to cultural property. way of any opinion held by the client large. As is a common experience with in the pending litigation or co-counsel. art, the two Morozov family paintings The Hague Regulations of 1907 ex-

5 Cultural Heritage & Arts Review, Summer 2011

Accounting for Bolshshevik Art: Moral and Legal Imperatives (cont’d)

The Konowaloff litigation issues may bring into focus this similar to that in the decades following World War II, debate, with U.S. courts called upon to choose whether for recognition of cultural property rights as an inher- in this context individual or state rights will triumph. ent human right warranting similar legal protections. This litigation is further complicated by whether theft by the Bolsheviks is truly demonstrative of state action; nonetheless, the overarching questions of 1. Peter Holquist, Making War, Forging Revolution: law seems to remain the same so that the “Met” and Russia’s Continuum of Crisis (2002). “Yale” cases may well shape the terrain of interna- 2. Greg Badisher, Documenting Nazi Plunder of Euro- tional art law. As the courts further define cultural pean Art (1997). property rights, more avenues may open for individu- als claiming to have had their rights violated by for- eign states. As the landscape of international art and cultural law becomes more familiar terrain for our judiciary, there may well be renewed public demand,

Van Gogh’s The Night Café. (Public Domain, via Wikimedia Commons.) Cultural Heritage & Arts Review, Summer 2011

A Conference Report: Human Rights and Cultural Heritage By Lucille A. Roussin On March 31, 2011, an all-day program sponsored by ASIL’s Cultural big. Second, widespread public perception that cultural heritage Heritage and the Arts Interest Group and entitled “Human Rights and preservation during times of crisis occurs at the expense of help- Cultural Heritage: from the Holocaust to the Haitian Earthquake” ing humans in crisis is a false dilemma. Terressa Davis, who is was held at the Benjamin N. Cardozo School of Law.1 the Executive Director of the Lawyers Committee for Cultural Heritage Preservation and has signifi cant experience with cultural To open the program, Allan Gerson, Chairman of AG Law Interna- heritage preservation – particularly in Cambodia and Sri Lanka – tional, a Washington law fi rm specializing in complex issues of in- concluded the panel’s presentation. She observed that the public ternational law and politics, gave a presentation entitled “Civil Liti- tends not to realize how important cultural heritage is until after gation to Secure Cultural Property as a Human Right” that covered the dust settles, the fl oods recede, and immediate humanitarian the continuing debate over whether there exists a recognized human needs are met and that cultural heritage preservation should be right to secure restitution of cultural property or, where the victim part of “up–front” post-war and disaster management planning. is deprived of actual possession, the right to just compensation. Mr. Gerson included some facts about his current litigation against The second panel discussed the topic of “Holocaust Era Looted the Metropolitan Museum involving Cezanne’s Madame Cézanne Art: Research and Restitution.” Marc Masurovsky, one of the in the Conservatory and Yale University involving Van Gogh’s leading scholars in the fi eld and co-founder of the Holocaust Art The Night Café. Both cases involve major issues in international Restitution Project, began with an historical overview of the res- law, including the act of state doctrine and sovereign immunity. titution of artworks looted during the Holocaust. Inge van der Vlies, a member of the Dutch Restitution Committee in Am- The fi rst panel of several panels that were held was entitled “Natu- sterdam and a professor of Constitutional Law and Art and Law ral Disasters: Haiti and Beyond” and included Corine Wegener, at the University of Amsterdam, addressed the workings of the the founder and President of the U.S. Committee of the Blue Restitution Project, its processes, and recent restitutions. Lucian Shield, the organization formed under the 1954 Hague Conven- Simmons, Vice President and Head of Restitution Department tion on the Protection of Cultural Property During War. Ms. at Sotheby’s in New York detailed the process used at Sotheby’s Wegener is a former offi cer of the U.S. Army and has served in to determine whether a work of art has questionable provenance, Sarajevo, Iraq, and, most recently, in Haiti. Her illustrated presen- provided accounts of some recent restitutions and settlements, tation discussed what has been and is being done to preserve the and discussed how the claims had been researched. Lawrence cultural monuments of Haiti. She stressed that the United States M. Kaye, a partner and Co-Chair of the Art Law Group at Her- cannot, on its own initiative, provide assistance; the country suffer- rick, Feinstein, LLP, spoke of some recent restitutions in the major ing the disaster must fi rst request assistance. She also discussed her case of the Goudstikker heirs. He also discussed the case against efforts to train local communities in conducting preservation work the Norton Simon Museum for one of the most notable pieces themselves. Also on the panel was Lisa Ackermann, Executive Vice of the Goudstikker collection, Lucas Cranach’s Adam and Eve, President and Chief Operating Offi cer of the World Monuments in which a petition for certiorari has been fi led for the case to be Fund (New York, NY), an organization dedicated to preserving heard by the Supreme Court of the United States. Mr. Kaye also and protecting endangered ancient and historic sites around the discussed other art cases that the fi rm had handled, notably in- world. Using a wonderful photo presentation, she demonstrated cluding the restitution of several paintings in the Stedlijk Museum the evolution of heritage protection efforts in which she has been in Amsterdam to the heirs of suprematist artist Kasimir Malevich. involved. In 1966, when Venice fl ooded, the focus was on Venice as a cultural icon and on high art. By the time Hurricane Katrina One of the highlights of the program was the keynote address by hit in 2005, however, the emphasis had shifted to include com- Howard N. Spiegler, who is the other Co-Chair of the Art Law munity-building, instead of just art and architecture. She drove Group of Herrick, Feinstein, LLP. Mr. Spiegler spoke on the topic home her point with a PowerPoint presentation about preserva- of restitution of Holocaust-era looted art, including some of the tion efforts at the Greater Little Zion Church, which, while not highlights of the recently settled case of United States v. Portrait of an architectural gem, is the heart of a community. Her two-fold Wally,2 in which Mr. Spiegler’s fi rm represented the heirs of Lea message was powerful. First, non-profi t entities – even when op- Bondi Jaray, the rightful owner of the Egon Schiele painting Por- erating on shoe-string budgets – should not be afraid to think trait of Wally. Mr. Spiegler related a haunting testimonial by Rabbi

7 Cultural Heritage & Arts Review, Summer 2011

A Conference Report: Human Rights and Cultural Heritage (cont’d)

Singer: “Himmler said you have to kill all the Jews because if you of cultural property, human rights, and the War on Terror. The don’t kill them, their grandchildren will ask for their property back.” four panelists, all based in Washington, D.C., included Mark N. Bravin, a partner at Winston & Strawn, LLP; Lisa Grosh, Deputy The afternoon sessions addressed, respectively, “Libraries and Assistant Legal Adviser, U.S. Department of State; Laina C. Lopez, Archives: Restitution of Recorded Cultural Heritage” and the an attorney at Berliner, Corcoran & Rowe, LLP; and Stuart H. “Foreign Sovereign Immunities Act: A Sword and a Shield.” Newberger, a partner at Crowell & Moring LLP. Mr. Bravin has represented both plaintiffs and defendants in FSIA litigation, in- Another session, entitled “Libraries and Archives: Restitution of cluding in McKesson v. Iran3 (plaintiff), which has been ongoing Recorded Cultural Heritage,” was moderated by Cardozo’s Associ- for 25 years, and Orkin v. The Swiss Confederation4 (defendant), ate Dean for Library Services and Professor of Legal Research Lynn which concerned a Van Gogh drawing sold by the plaintiff’s grand- Wishart. This session addressed the many diffi cult issues involved mother, who was of Jewish descent, to a Swiss collector in 1933 “to with the restitution of written documents. Jeff Spur, Secretary and help fund her family’s escape from the Nazis’ persecution of Ger- Board Member of the Sabre Foundation, discussed the contested man Jews.”5 Ms. Grosh, who spoke in her individual capacity, issue of the restitution of the ancient Jewish documents rescued was heavily involved with litigation under the “Terrorism Amend- from the fl ood in the Iraq Library after the American incursion ments” to the FSIA, which expressly authorized litigation against into Iraq. The Library contends they are part of the history of nations identifi ed as State Sponsors of Terrorism. Ms. Lopez’s fi rm Iraq, but there is no longer any Jewish community in Iraq. Iraqi represents the Islamic Republic of Iran, including in the McKes- Jews in Israel and the United States contend that the documents son litigation and proceedings brought by plaintiffs who obtained should be restituted to a living Jewish community. Nathan Lewin, default judgments against Iran under the Terrorism Amendments a partner at Lewin & Lewin, LLP (Washington, D.C.), discussed and who seek to seize and sell Persian antiquities in U.S. museums his fi rm’s representation of the successful plaintiff, Agudas Chasidei in an effort to execute their judgments. The panel engaged in a Chabad, from the perspective of international law, under which fascinating discussion of the mechanics of FSIA litigation, includ- the Russian Federation is obligated to restitute documents and ing whether forced seizure and possible auction of cultural objects books to the Chabad in New York but has refused to do so. Pa- should be allowed to compensate victims of terrorism and whether tricia Grimsted, Senior Research Associate at the Harvard Ukrain- litigation or mass claims resolution might be a better course to se- ian Research Institute, discussed the history of looting by the Ein- cure justice for terrorism and genocide victims – and public safety. zatzstab Reichsleiter Rosenberg (ERR) in Western Europe. She noted that while the three largest ERR concentrations of books In conclusion, the conference, which brought together contained works that came from both West and East, far more new voices from the cultural heritage and human rights originated in the West. She highlighted how looted collections fi elds, was dynamic, informative, and thought-provoking. (estimated at 600,000 books) that came to rest in the Soviet sectors were taken back as part of the Soviet trophy brigades; thus, pros- 1. The program was organized by The Cultural Heritage and the Arts pects for restitution today largely hinge on whether the books and Interest Group of the American Society of International Law, The archives came to rest in the Soviet or Allied sectors. Just six years Lawyer’s Committee for Cultural Heritage Preservation, Cardozo Art ago, it was admitted for the fi rst time that collections were taken to Law Society, and the Hofstra Law School Art and Cultural Heritage Minsk in November 1945; Dr. Grimsted herself had found scraps Club. The author would like to thank the program’s sponsors, the of evidence in card catalogues that matched up with ERR confi s- Commission for Art Recovery and Herrick, Feinstein, LLP. cation lists. She questioned how the Russian people could view 2. United States v. Portrait of Wally, 663 F. Supp. 2d 232 (S.D.N.Y. the cultural materials, which were taken from Jews and written 2009). in languages not commonly used in Russia, as compensation for 3. McKesson Corp. v. Islamic Republic of Iran, 752 F.Supp.2d 12 their War-era losses and demand compensation to return them. (D.D.C. 2010). 4. Orkin v. Swiss Confederation, No. 09 Civ. 10013 LAK, 2011 WL The panel on the Foreign Sovereign Immunities Act presented a 856281 (S.D.N.Y. 2011). lively discussion on the applicability of the FSIA. Professor Jen- 5. Id. at *1. nifer Anglim Kreder from Salmon P. Chase College of Law at Northern Kentucky University conducted a roundtable discussion with four experts on FSIA litigation to explore the intersection

8 Cultural Heritage & Arts Review, Summer 2011

The Fine Art of Privacy in New York By Jenna M. Jordan There is a fi ne balance between the First without the subject’s knowledge).5 Di- ness would not constitute defamation; Amendment and privacy rights. On Corcia subsequently made no attempts the use of his likeness would be pro- the one hand, freedom of expression is to obtain the consent of any of the pho- tected by the First Amendment; and a fundamental right revered by Ameri- tographed persons.6 He further refused the law would not provide an other- cans. On the other, Americans expect to cease use of the image upon notice wise meritorious claim for false light. to be free to live their lives without un- from Nussenzweig, relying on his con- necessary invasions into their privacy. stitutional right to free speech, a de- Somewhat analogous to the artist’s free- termination with which the court that dom of speech is the hallowed protec- The problem with New York’s pri- subsequently heard the case agreed.7 tion of the press. In a case involving vacy laws is not that artists are given an arguably more offensive invasion First Amendment protection, but that A key element in the Nussenzweig case of privacy, the defendant published many plaintiffs are denied a remedy for was the identity of the photographer. explicit photos of two deceased chil- actual harm. This is most problem- The Constitution protects only state ac- dren.16 The photographer snapped atic when plaintiffs are portrayed in a tions that interfere with the free exer- the pictures at the scene where the two false light. The First Amendment en- cise of religion.8 DiCorcia was merely children had suffocated inside a refrig- trusts artists with a great responsibil- a private citizen.9 Therefore, without erator, to be used in a sensationalized ity, but the lack of a remedy for false the ability to sue for portraying Nussen- story he was authoring about the trag- light eliminates a valuable safeguard zweig in a “disgraceful light within his edy.17 The pleas of the grief-stricken against abuse of this public trust. community” where “people might think parents were ignored,18 and the court he sold out for a few bucks,”10 Nussen- bowed to the press’s unfettered ability to The stifl ing of artistic expression is not zweig was left completely unarmed, le- publish that which is “newsworthy.”19 the answer. The freedom of expression gally, and without an adequate remedy. is tantamount to the American way Another issue arises when an individual of life and lies within the bedrock of Currently, New York plaintiffs are has voluntarily posed for an artist and our Constitution. However, there are strictly limited to statutory recovery for the artist uses the person’s likeness in a limitations placed on speech. Defama- violations of their privacy.11 There are way unanticipated by the model. For tion is a prime example of such a limi- no supplementary common law rights example, a fourteen-year-old model tation. Approximately two-thirds of to privacy. The right of publicity pro- posed for a teen magazine without U.S. states recognize the related cause tects against only unlicensed uses of knowing the exact use intended for of action for false light.1 New York is one’s likeness for the purposes of adver- the photographs.20 The magazine sub- among the one-third that does not ex- tising or trade within the state.12 Defa- sequently used her photographs to il- tend privacy rights to instances where mation actions in New York require that lustrate an anonymous letter regarding statements merely portray an individual the plaintiff establish the following el- teen sexual promiscuity and alcohol in a false light.2 This leaves private citi- ements: (1) that the defendant made a abuse.21 Specifi cally, the article stated zens vulnerable to invasions of privacy false statement, (2) that the statement that the young girl had had sexual re- without the balance-shifting benefi t was published to a third party without lations with her boyfriend and his two of encouraging the free fl ow of ideas. privilege or authorization, (3) that the friends while intoxicated.22 Neither defendant was at fault, and (4) that party disputed the fact that the plaintiff Consider also the situation where a pho- publication of the statement caused was not the author of the letter.23 None- tograph is taken of a deeply religious special harm or was defamation per se.13 theless, the court held that the fourteen- person whose beliefs are offended by year-old model did not have a cause the creation of graven images. In New One troubling aspect of this legal defi - of action in the state of New York.24 York, the artist’s right to take the pho- ciency is that it prevents any common tograph will trump the subject’s right to law recovery for false light within the The conclusion to be drawn from the freely exercise his or her religion.3 This state.14 For example, if an artist in- above-mentioned illustration is that was the case for Erno Nussenzweig, cluded a sketched portrait of her ex- a plaintiff should be informed about a Hasidic Jew, when his picture was husband in an exhibition focusing taken by artist Philip-Lorca diCorcia as mainly on marital rape but not depict- LL.M. in Intellectual Property, Benja- he passed through Times Square.4 Di- ing him as committing the crime, then min N. Cardozo School of Law, 2011; Corcia was purposefully taking candid he would have no recourse in New J.D., Stetson University College of photographs (i.e., photographs taken York.15 The truthful sketch of his like- Law, 2010.

9 Cultural Heritage & Arts Review, Summer 2011

the intended uses of her likeness. The example, would a limited edition Fender interest” exception traditionally associ- court’s holding, however, encourages guitar bearing an unauthorized painting ated with the press.42 The First Amend- subversive tactics to elicit the consent of John Mayer32 be a work of art?33 Or ment will protect instances where a of individuals for portrayals that would would it be an invasion of the musician’s photograph is taken of a person pass- otherwise be met with staunch oppo- right of publicity? The painting would ing through a public place.43 Videog- sition. A remedy for false light would most certainly qualify as a portrait, and raphers may still record the happenings incentivize full disclosure without risk- it was created without Mayer’s approv- around them.44 Autobiographers will ing a chilling effect on speech. In the al. But is it being used for purposes of still be free to recount their stories.45 fourteen-year-old model’s case, the trade? What if instead of John Mayer They will merely have to be sure that magazine could have published the ar- it was the image of President George they are producing honest commentary. ticle without illustrative photographs. Washington? This distinction is critical For example, it could have replaced the because the right of publicity is only at The tension between individuals’ rights pictures with cartoons. Instead, the issue if the painting is for the purposes to privacy and the safeguard of the First magazine concealed the facts while the of trade rather than artistic expression. Amendment could be tempered with law left this young girl helpless to de- a right of action for false light. Art- fend against such predatory behavior. The New York courts have developed a ists would still be free to exercise their test to help determine whether a work freedom of expression, but the pub- The First Amendment is an enormous of art falling outside of the presump- lic would be given a weapon to guard hurdle for plaintiffs alleging harm tively protected categories34 is shielded against reckless and malicious inva- caused by a work of art to overcome. by the First Amendment. This test fo- sions of privacy. Art would still be rec- Art is, by defi nition, creative expres- cuses on the predominant purpose of ognized as speech. The First Amend- sion.25 It is a means by which people the piece.35 A plaintiff will be unsuc- ment would still protect matters of disseminate ideas.26 Some commenta- cessful with a privacy right claim if the public interest. Commentary on real tors interpret art as encompassing all offending object has a “predominantly events would be fair game. But there forms of human expression.27 New expressive purpose”36 because the courts would be an aspect of responsibility York courts have soundly established have stated that the right of privacy ensuring the protection of individuals. that this type of speech is unequivocally “must fall to the constitutionally pro- entitled to First Amendment protec- tected right to freedom of speech.”37 There is no rational need to extend tion.28 Therefore, the threshold ques- This is the price society must be pre- the freedom of expression to false tion for plaintiffs is what qualifi es as art. pared to pay for the free fl ow of ideas.38 speech masquerading as art. Such speech threatens the integrity of crea- There are four categories of visual art The predominant purpose of the art tive expression and subjects individu- that are presumptively characterized as does not fail to qualify as having a pre- als to unnecessary harm. Protection expression in New York: (1) paintings, dominately expressive purpose simply against such opportunistic expression (2) photographs, (3) prints, and (4) because it is sold.39 Even reproductions is, therefore, necessary to preserve the sculptures.29 This leaves quite a bit of of items to be sold in a museum gift public’s faith in true artistic expression. visual art outside of the presumptively shop will not forfeit First Amendment protected categories. For example, protection.40 However, the speech ex- video art is excluded entirely. However, ception will be lost where the “essential 1. Rasmussen, Kristen, Comment, New York is generally liberal in applica- nature” of the “artistic expression” is Shedding (False) Light: How the tion of these categories.30 Do Leonardo changed.41 Therefore, the boundary be- Florida Supreme Court’s Rejection of da Vinci’s drawings fi t into any of these tween protected art and mere unlicensed the Tort Falsely Implies Protection for boxes? Are Jean-Michel Basquiat’s graf- commercial use of a person’s likeness lies Media Defendants, 61 FLA. L. REV. fi ti works paintings? What is the dif- where the commercial nature overcomes 911, 914 n.19 (2009). ference between a vacation photograph the expressive purpose of the work. But 2. See Brockman v. Frank, 149 Misc. taken by a family at the beach that catch- even if a plaintiff succeeds in establish- 2d 399, 402 (N.Y. Sup. Ct. 1991). es a topless sunbather, a voyeur’s pho- ing that an offensive work is not art pro- 3. Kenneth Schacter, one of DiCor- tograph taken of the same sunbather, tected by the First Amendment, he or cia’s lawyers, was so bold as to state and an artist’s photograph of the same? she will still be left with only two causes that DiCorcia’s “First Amend- of action under New York privacy law, ment rights . . . trump his religious A few plaintiffs may claim a violation defamation and the right of publicity. beliefs.” Judge Dismisses Lawsuit of their publicity rights. The cause of Over Orthodox Jew’s Times Square action requires (1) use of the plaintiff’s Adding a false light cause of action Photo, WORLDWIDE RELIGIOUS NEWS, name, portrait, picture, or voice, (2) for would not threaten an artist’s ability to Feb. 14, 2006, http://wwrn.org/ advertising or trade purposes, (3) with- create. Artists will continue to be af- articles/20434/?&place=united- out the plaintiff’s written consent. 31 For forded great leeway under the “public states§ion=judaism.

10 Cultural Heritage & Arts Review, Summer 2011

The Fine Art of Privacy in New York (cont’d)

4. Nussenzweig v. DiCorcia, No. 108446/05, 2006 WL 31. Burck v. Mars, Inc., 571 F. Supp. 2d 446, 451 (S.D.N.Y. 304832 (N.Y. Sup. Ct. Feb. 8, 2006). 2008). New York’s right of publicity is codifi ed in N.Y. 5. Id. CIV. RIGHTS §§ 50-51 (2011). 6. Id. 32. John Mayer is an internationally recognized pop musician 7. Id. and guitarist. See John Mayer, http://www.johnmayer. 8. Id. com/ (last visited June 28, 2011). 9. Id. 33. Fender’s “Marilyn Monroe” Stratocaster is an example of 10. Judge Dismisses Lawsuit Over Orthodox Jew’s Times a similar use of a celebrity’s image on an instrument. See Square Photo, supra note 3. http://www.strat-central.com/c2.htm. 11. Arrington v. N.Y. Times Co., 55 N.Y.2d 433, 440 (N.Y. 34. The categories are as follows: (1) paintings, (2) photo- 1982). graphs, (3) prints, and (4) sculptures. Mastrovincenzo, 435 12. Nussenzweig v. DiCorcia, No. 108446/05, 2006 WL F.3d at 93-94. 304832 (N.Y. Sup. Ct. Feb. 8, 2006). 35. Id. at 96. 13. Dillon v. City of New York, 261 A.D.2d 34 (N.Y. App. 36. Id. Div. 1999). 37. Simeonov v. Tiegs, 602 N.Y.S.2d 1014, 1018 (N.Y. 14. Arrington, 55 N.Y.2d at 442. Civ. Ct. 1993). See also Creel v. Crown Publishers, 496 15. Cf. Bonome v. Kaysen, No. 032767, 2004 WL 1194731 N.Y.S.2d 219 (N.Y. App. Div. 1985) (plaintiff’s photo- (Mass. Super. Ct. Mar. 3, 2004), in which the author of graph on a nude beach was published in a travel guide a semi-autobiographical book included a character based without her consent. The photographs were not art, but on her previous boyfriend. Enough of the facts remained were nonetheless given First Amendment protection under unchanged regarding his character that he was easily recog- the “public interest” exception). nizable to those that knew the couple. Scenes in the book 38. Arrington v. N.Y. Times Co., 55 N.Y.2d 433, 442 (N.Y. suggested unsubstantiated claims of sexual aggression and 1982) (“an inability to vindicate a personal predilection for even rape on the part of the plaintiff, yet he was denied an greater privacy may be part of the price every person must action for false light. See also Gaeta v. Home Box Offi ce, be prepared to pay for a society in which information and 645 N.Y.S.2d 707 (N.Y. Civ. Ct. 1996) (denying recovery opinion fl ow freely”). to a woman who was fi lmed while watching a nude photo 39. Simeonov, 602 N.Y.S.2d at 1018. See also Nussenzweig v. shoot in an erotic documentary). DiCorcia, No. 108446/05, 2006 WL 304832 , at *6 (N.Y. 16. Costlow v. Cusimano, 34 A.D.2d 196 (N.Y. App. Div. Sup. Ct. Feb. 8, 2006) (stating that even a “profi t generat- 1970). ing motive will not convert an otherwise newsworthy use” 17. Id. to that of trade); Dworkin v. Hustler, 867 F.2d 1188 (9th 18. Id. Cir. 1989). 19. Id. 40. Hoepker v. Kruger, 200 F. Supp. 2d. 340, 354 (S.D.N.Y. 20. Messenger v. Gruner + Jahr Printing & Publ’g, 94 N.Y.2d 2002) (recognizing that art may maintain its artistic char- 436 (N.Y. 2000). acter even after being sold). 21. Id. 41. Id. 22. Id. 42. See Creel, 496 N.Y.S.2d at 219. 23. Id. 43. Nussenzweig v. DiCorcia, No. 108446/05, 2006 WL 24. Id. 304832 (N.Y. Sup. Ct. Feb. 8, 2006). 25. BLACK’S LAW DICTIONARY (9th ed. 2009). 44. Gaeta v. Home Box Offi ce, 645 N.Y.S.2d 707, 710 (N.Y. 26. Goldstein, Ariella, Comment, Privacy From Photography: Is Civ. Ct. 1996) (permitting footage of the plaintiff stopping There A Right Not To Be Photographed Under New York State to watch a nude photo shoot on a public street to be in- Law?, 26 CARDOZO ARTS & ENT. L.J. 233 (2008). cluded in an erotic documentary over the plaintiff’s objec- 27. Roberta Rosenthal Kwall, The Right of Publicity vs. The tions on the basis that her presence at the event constituted First Amendment: A Property and Liability Rule Analysis, a “matter of some public interest” and was therefore within 70 Ind. L.J. 47, 67 (1994) (stating that “all different art the ambit of the First Amendment). forms embodying human expression”). 45. See Anonsen v. Donahue, 857 S.W.2d 700 (Tex. App. 28. Hoepker v. Kruger, 200 F. Supp. 2d. 340, 349 (S.D.N.Y. 2003) (holding that a grandmother was permitted to use 2002). her name and likeness when she exposed her family’s secret 29. Mastrovincenzo v. City of New York, 435 F.3d 78, 81 (2d regarding the fact that her son was actually her grandson – Cir. 2006). the child had been conceived as a result of the rape of her 30. See Simeonov v. Tiegs, 602 N.Y.S.2d 1014 (N.Y. Civ. Ct. 1993); daughter by a previous marriage committed by her second Hoepker v. Kruger, 200 F. Supp. 2d. 340 (S.D.N.Y. 2002). husband).

11 Cultural Heritage & Arts Review, Summer 2011

PERVERSE SEA CHANGE: Underwater Cultural Heritage in the Ocean is Facing Chemical and Physical Changes rine plants and animals. Rather, the CO2 dissolves in the By Mark J. Spalding ocean water itself, which decreases the pH of the water, mak- ing it more acidic. Corresponding with the increase in car- Is the loss of our Underwater (or acidity) of the ocean is bon dioxide emissions in recent years, the pH of the ocean Cultural Heritage accelerat- changing — unevenly across as a whole is falling, and as the problem becomes more wide- ing? geographies — as is salinity, spread, it is expected to adversely affect the ability of calcium- The term “underwater cul- because of melting ice caps based organisms to thrive. As the pH drops, coral reefs will tural heritage”1 (UCH) re- and freshwater pulses from lose their color, fi sh eggs, urchins, and shellfi sh will dissolve fers to all remnants of human fl ooding and storm systems. before maturation, kelp forests will shrink, and the under- activities lying on the seabed, As the result of other aspects water world will become gray and featureless. It is expected on riverbeds, or at the bot- of climate change, we are that color and life will return after the system re-balances it- tom of lakes. It includes seeing rising water tempera- self, but it is unlikely that mankind will be here to see it. shipwrecks and artifacts lost tures overall, shifting global at sea and extends to pre- currents, sea level rise, and The chemistry is straightforward. The forecasted continua- historic sites, sunken towns, increased weather volatil- tion of the trend towards greater acidity is broadly predictable, and ancient ports that were ity. Despite the unknowns, but it is hard to predict with specifi city. The effects on species once on dry land but now are it is reasonable to conclude who live in calcium bicarbonate shells and reefs are easy to submerged due to manmade, that the cumulative impact imagine. Temporally and geographically, it is harder to pre- climatic, or geological chang- of these changes is not good dict harm to oceanic phytoplankton and zooplankton com- es. It can include works of for underwater heritage sites. munities, the basis of the food web and thus of all commercial art, collectable coinage, and Excavation is usually limited ocean species harvests. With regard to UCH, the decrease in even weapons. This global to sites that have immediate pH may be small enough that it has no substantial negative underwater trove forms an potential to answer impor- effects at this point. In short, we know a lot about “how” integral part of our common tant research questions or and “why” but little about “how much,” “where,” or “when.” archaeological and historical which are under threat of de- heritage. It has the potential struction. Do museums and In the absence of a timeline, absolute predictability, and to provide invaluable infor- those responsible for making geographic certainty about the effects of ocean acidifi ca- mation about cultural and determinations about the dis- tion (both indirect and direct), it is challenging to develop economic contacts and mi- position UCH have the tools models for present and projected effects on UCH. Moreo- gration and trade patterns. for assessing and, poten- ver, the call by members of the environmental community tially, predicting the threats for precautionary and urgent action on ocean acidifi cation The saline ocean is known to to individual sites that come to restore and promote a balanced ocean will be slowed by be a corrosive environment. from changes in the ocean? some who demand more specifi cs before acting, such as what In addition, currents, depth thresholds will affect certain species, which parts of the ocean (and related pressures), tem- What is this ocean chemistry will be most affected, and when these consequences are likely perature, and storms affect change? to occur. Some of the resistance will come from scientists how UCH is protected (or The ocean absorbs substan- who want to do more research, and some will come from not) over time. A lot of what tial amounts of the carbon those who want to maintain the fossil-fuel-based status quo. once was considered stable dioxide emissions from cars, about such ocean chemistry power plants, and factories One of the world’s leading experts on underwater cor- and physical oceanography in its role as the planet’s larg- rosion, Ian McLeod of the Western Australian Museum, is now known to be shift- est natural carbon sink. It noted the potential effects of these changes on UCH: ing, often with unknown cannot absorb all such CO2 consequences. The pH from the atmosphere in ma- All in all I would say that increased acidifi cation of the oceans will most likely cause increased rates Mark J. Spalding, J.D., M.P.I.A., is President of The Ocean of decay of all materials with the possible excep- Foundation in Washington, D.C. He wishes to thank Lea tion of glass, but if the temperature increases as well Howe for research assistance. then the overall net effect of more acid and high-

12 Cultural Heritage & Arts Review, Summer 2011

PERVERSE SEA CHANGE (cont’d)

er temperatures would mean that conservators and maritime archaeologists will fi nd that their under- water cultural heritage resources are diminishing.2

We may not yet be able to evaluate fully the cost of inac- tion on affected shipwrecks, submerged cities, or even more recent underwater art installations. We can, however, be- gin to identify the questions that we need to answer. And we can start to quantify the damages that we have seen and that we expect, which we have already done, for example, in observing the deterioration of the USS Arizona in Pearl Harbor and the USS Monitor in the USS Monitor Na- tional Marine Sanctuary. In the case of the latter, NOAA accomplished this by pro-actively excavating items from the site and seeking ways to protect the hull of the vessel.

Changing ocean chemistry and related biological effects will endanger UCH What do we know about the effect of ocean chemistry chang- An example of damage from shipworms. es on UCH? At what level does change in pH have an impact (Courtesy of Rygel, M.C., via Wikimedia Commons.) on artifacts (wood, bronze, steel, iron, stone, pottery, glass, With regard to organic materials the increased acidifi - etc.) in situ? Again, Ian McLeod has provided some insight: cation may make the action of wood boring mollusks less destructive, as the mollusks will fi nd it harder to With regard to underwater cultural heritage in gen- breed and to lay down their calcareous exoskeletons, eral, the glazes on ceramics will deteriorate more rap- but as one microbiologist of great age told me, . . . as idly with faster rates of leaching of the lead and tin soon as you change one condition in an effort to cor- glazes into the marine environment. Thus, for iron, rect the problem, another species of bacterium will increased acidifi cation would not be a good thing as become more active as it appreciates the more acidic artifacts and the reef structures formed by concret- microenvironment, and so it is unlikely that the net ed iron shipwrecks would collapse faster and would result would be of any real benefi t to the timbers. be more prone to damage and collapse from storm events as the concretion would not be as strong or Some “critters” damage UCH, such as gribbles, a small crusta- as thick as in a more alkaline microenvironment.

Depending on their age, it is likely that glass objects might fare better in a more acidic environment as they tend to be weathered by an alkaline dissolution mechanism that sees the sodium and calcium ions leach out into the sea water only to be replaced by acid resulting from hydrolysis of the silica, which produc- es silicic acid in the corroded pores of the material.

Objects such as materials made from copper and its alloys will not fare so well as the alkalin- ity of the seawater tends to hydrolyze acidic cor- rosion products and helps to lay down a protec- tive patina of copper(I) oxide, cuprite, or Cu2O, and, as for other metals such as lead and pewter, the increased acidifi cation will make corrosion eas- ier as even the amphoteric metals such as tin and lead will not respond well to increased acid levels.

An actual shipworm. (Courtesy of the U.S. Geological Survey, via Wikimedia Commons.)

13 Cultural Heritage & Arts Review, Summer 2011

PERVERSE SEA CHANGE (cont’d) cean species, and shipworms. Shipworms, which are not worms exposed the surface of the metal hull for the fi rst time in at all, are actually marine bivalve mollusks with very small many years, which will negatively affect its conservation. shells, notorious for boring into and destroying wooden struc- In a similar situation in North America, the authorities of tures that are immersed in seawater, such as piers, docks, and Florida’s Biscayne National Park are concerned about the ef- wooden ships. They are sometimes called “termites of the sea.” fects of hurricanes on the 1744 wreck of the HMS Fowey.

Shipworms accelerate UCH deterioration by aggressively Currently, these issues are on track to worsen. Storm systems, boring holes in wood. But, because they have calcium bi- which are becoming more frequent and more intense, will carbonate shells, shipworms could be threatened by ocean continue to disturb UCH sites, damage marking buoys, and acidifi cation. While this may be benefi cial for UCH, it re- shift mapped landmarks. In addition, debris from tsunamis mains to be seen whether shipworms will actually be affected. and storm surges can easily be swept from the land out to In some places, such as the Baltic Sea, salinity is increas- sea, colliding with and potentially damaging everything in its ing. As a result, salt-loving shipworms are spreading to more path. Sea level rise or storm surges will result in the increased wrecks. In other places, warming ocean waters will decrease erosion of shorelines. Siltation and erosion may obscure all in salinity (due to melting freshwater glaciers and pulse fresh- sorts of nearshore sites from view. But there may be posi- water fl ows), and thus shipworms that depend on high sa- tive aspects as well. Rising waters will change the depth of linity will see their populations will decrease. But questions known UCH sites, increasing their distance from shore but remain, such as where, when, and, of course, to what degree? providing some added protection from wave and storm en- ergy. Likewise, shifting sediments may reveal unknown sub- Are there benefi cial aspects to these chemical & biologi- merged sites, or, perhaps, sea level rise will add new under- cal changes? Are there any plants, algae, or animals that water cultural heritage sites as communities are submerged. are threatened by ocean acidifi cation that somehow protect UHC? These are questions for which we have no real an- In addition, the accumulation of new layers of sediment and swers at this point and are unlikely to be able to answer in silt will likely require additional dredging to meet transporta- a timely fashion. Even precautionary action will have to tion and communication needs. The question remains as to be based on uneven predictions, which might be indicative what protections should be afforded to in situ heritage when of how we proceed going forward. Thus, consistent real- new channels have to be carved or when new power and com- time monitoring by conservators is of crucial importance. munication transmission lines are installed. Discussions of implementing renewable offshore energy sources further com- Physical ocean changes plicate the issue. It is, at best, questionable whether the pro- The ocean is constantly in motion. The movement of wa- tection of UCH will be given priority over these societal needs. ter masses due to winds, waves, tides, and currents has al- ways affected underwater landscapes, including UCH. But What can those interested in international law expect in rela- are there increased effects as these physical processes become tion to ocean acidifi cation? more volatile due to climate change? As climate change In 2008, 155 leading ocean acidifi cation researchers from warms the global ocean, the patterns of currents and gyres 26 countries approved The Monaco Declaration.5 The (and thus heat redistribution) change in a way that funda- Declaration may provide the beginning of a call to ac- mentally affects the climate regime as we know it and ac- tion, as its section headings reveal: (1) ocean acidifi cation companies the loss of global climate stability or, at least, is underway; (2) ocean acidifi cation trends are already de- predictability. The basic consequences are likely to occur tectable; (3) ocean acidifi cation is accelerating and severe more rapidly: sea-level rise, alterations of rainfall patterns damage is imminent; (4) ocean acidifi cation will have so- and storm frequency or intensity, and increased siltation. cioeconomic impacts; (5) ocean acidifi cation is rapid, but recovery will be slow; and (6) ocean acidifi cation can be The aftermath of a cyclone that hit the shore of Austral- controlled only by limiting future atmospheric CO2 levels.6 ia in early 20113 illustrates the effects of physical ocean changes on UCH. According to the Principal Heritage Unfortunately, from the perspective of international ma- Offi cer of the Australian Department of Environment and rine resources law, there has been an imbalance of equi- Resource Management, Paddy Waterson, Cyclone Yasi af- ties and insuffi cient development of facts relating to UCH fected a wreck called the Yongala near Alva Beach, Queens- protection. The cause of this problem is global, as are the land. While the Department is still assessing the impact of potential solutions. There is no specifi c international law this powerful tropical cyclone on the wreck,4 it is known related to ocean acidifi cation or its effects on natural re- that the overall effect was to abrade the hull, removing most sources or submerged heritage. Extant international marine soft corals and a signifi cant amount of hard corals. This resources treaties provide little leverage to force large CO2

14 Cultural Heritage & Arts Review, Summer 2011

emitting nations to change their behaviors for the better. United States into the UNCLOS dispute settlement mech- anism to respond to a vulnerable country’s demand for ac- As with broader calls for climate change mitigation, collective tion on ocean acidifi cation. Even if the United States and global action on ocean acidifi cation remains elusive. There may China, the world’s two largest emitters, were engaged in be processes that can bring the issue to the attention of the par- the mechanism, meeting the jurisdictional requirements ties to each of the potentially relevant international agreements, would still be a challenge, and the complaining parties like- but simply relying on the power of moral suasion to embarrass ly would have a hard time proving harm or that these two the governments into acting seems overly optimistic, at best. largest emitter governments specifi cally caused the harm.

Relevant international agreements establish a “fi re alarm” sys- Two other agreements bear mentioning, here. The UN tem that could call attention to the ocean acidifi cation prob- Convention on Biological Diversity does not mention ocean lem at the global level. These agreements include the UN acidifi cation, but its focus on conservation of biological di- Convention on Biological Diversity, the Kyoto Protocol, and versity certainly is triggered by concerns about ocean acidi- the UN Convention on the Law of the Sea. Except, perhaps, fi cation, which have been discussed at various conferences when it comes to protecting key heritage sites, it is diffi cult to of the parties. At the very least, the Secretariat is likely to inspire action when the harm is mostly anticipated and wide- monitor actively and report on ocean acidifi cation going ly dispersed, rather than being present, clear, and isolated. forward. The London Convention and Protocol and the Damage to UCH may be a way to communicate the need for MARPOL, the International Maritime Organization agree- action, and the Convention on the Protection of the Under- ments on marine pollution, are too narrowly focused on water Cultural Heritage may provide the means for doing so. dumping, emitting, and discharge by ocean-going vessels to be of real assistance in addressing ocean acidifi cation. The UN Framework Convention on Climate Change and the Kyoto Protocol are the main vehicles for addressing climate The Convention on the Protection of the Underwater Cul- change, but both have their shortcomings. Neither refers to tural Heritage is nearing its 10th anniversary in Novem- ocean acidifi cation, and the “obligations” of the parties are ber 2011. Not surprisingly, it did not anticipate ocean expressed as voluntary. At best, the conferences of the par- acidifi cation, but it does not even mention climate change ties to this convention offer the opportunity to discuss ocean as a possible source of concern — and the science was cer- acidifi cation. The outcomes of the Copenhagen Climate tainly there to underpin a precautionary approach. Mean- Summit and the Conference of the Parties in Cancun do not while, the Secretariat for the UNESCO World Heritage bode well for signifi cant action. A small group of “climate Convention has mentioned ocean acidifi cation in relation deniers” have devoted signifi cant fi nancial resources to mak- to natural heritage sites, but not in the context of cultural ing these issues a political “third rail” in the United States and heritage. Clearly, there is a need to fi nd mechanisms to elsewhere, further limiting political will for strong action. integrate these challenges into planning, policy, and prior- ity setting to protect cultural heritage at the global level. Similarly, the UN Convention on the Law of the Sea (UN- CLOS) does not mention ocean acidifi cation, although it Conclusion does expressly address the rights and responsibilities of the The complex web of currents, temperatures, and chemistry parties in relation to protection of the ocean, and it requires that fosters life as we know it in the ocean is at risk of being the parties to protect underwater cultural heritage under irreversibly ruptured by the consequences of climate change. the term “archaeological and historical objects.” Articles We also know that ocean ecosystems are very resilient. If a 194 and 207, in particular, endorse the idea that parties coalition of the self-interested can come together and move to the convention must prevent, reduce, and control pol- quickly, it is probably not too late to shift public awareness lution of the marine environment. Perhaps the drafters of toward promotion of the natural re-balancing of ocean chem- these provisions did not have harm from ocean acidifi ca- istry. We need to address climate change and ocean acidifi ca- tion in mind, but these provisions may nevertheless present tion for many reasons, only one of which is UCH preservation. some avenues to engage the parties to address the issue, es- Underwater cultural heritage sites are a critical part of our un- pecially when combined with the provisions for responsibil- derstanding of global maritime trade and travel as well as the his- ity and liability and for compensation and recourse within toric development of technologies that have enabled it. Ocean the legal system of each participating nation. Thus, UN- acidifi cation and climate change pose threats to that heritage. CLOS may be the strongest potential “arrow” in the quiv- The probability of irreparable harm seems high. No manda- er, but, importantly, the United States has not ratifi ed it. tory rule of law triggers reduction of CO2 and related green- house gas emissions. Even the statement of international good Arguably, once UNCLOS came into force in 1994, it be- intentions expires in 2012. We have to use existing laws to urge came customary international law and the United States is new international policy, which should address all of the ways bound to live up to its provisions. But it would be fool- and means we have at our disposal to accomplish the following: ish to argue that such a simple argument would pull the

15 Cultural Heritage & Arts Review, Summer 2011

• Restore coastal ecosystems to stabilize seabeds heritage trove. While ocean acidifi cation certainly undermines and shorelines to reduce the impact of climate the natural systems and, potentially, UCH sites, there are mul- change consequences on nearshore UCH sites; tiple, interconnected stressors that can and should be addressed. • Reduce land-based pollution sources that reduce Ultimately, the economic and social cost of inaction will be rec- marine resilience and adversely affect UCH sites; ognized as far exceeding the cost of acting. For now, we need • Add evidence of potential harm to natural and cul- to set in motion a precautionary system for protecting or exca- tural heritage sites from changing ocean chemistry vating UCH in this shifting, changing ocean realm, even as we to support existing efforts to reduce CO2 output; work to address both ocean acidifi cation and climate change. • Identify rehabilitation/compensation schemes for ocean acidifi cation environmental damage (standard polluter 1. For additional information about the formally recog- pays concept) that makes inaction far less of an option; nized scope of the phrase “underwater cultural heritage,” • Reduce other stressors on marine ecosystems, such as in- see United Nations Educational, Scientifi c and Cultural water construction and use of destructive fi shing gear, Organization (UNESCO): Convention on the Protec- to reduce potential harm to ecosystems and UCH sites; tion of the Underwater Cultural Heritage, Nov. 2, 2001, 41 I.L.M. 40. • Increase UCH site monitoring, identifi cation of 2. All quotations, both here and throughout the remain- protection strategies for potential confl icts with der of the article, are from email correspondence with shifting ocean uses (e.g., cable laying, ocean- Ian McLeod of the Western Australian Museum. These based energy siting, and dredging), and more rap- quotations may contain minor, non-substantive edits for id response to protecting those in jeopardy; and clarity and style. • Development of legal strategies for pursuit of dam- 3. Meraiah Foley, Cyclone Lashes Storm-Weary Australia, ages due to harm to all cultural heritage from cli- N.Y. TIMES, Feb. 3, 2011, at A6. mate-change-related events (this may be tough to do, 4. Preliminary information about the effect on the wreck but it is a strong potential social and political lever). is available from the Australian National Shipwreck Da- tabase at http://www.environment.gov.au/heritage/ship- In the absence of new international agreements (and their good wrecks/database.html. 5. MONACO DECLARATION (2008), available at http://ioc3. faith implementation), we have to remember that ocean acidi- unesco.org/oanet/Symposium2008/MonacoDeclaration. fi cation is just one of many stressors on our global underwater pdf. Commission for Art Recovery

The Commission for Art Recovery deals with governments, museums, and other institutions interna- tionally to help, through moral suasion, to bring a small measure of justice into the lives of families whose art was lost. For the benefit of claimants who must locate their missing art, we encourage and help museums and governments to research, identify and publicize works in their possession that may have been stolen during the years of the Third Reich. We promote streamlined procedures that facili- tate the return of these works to their rightful owners. While the Commission for Art Recovery is not a claims organization, we have orchestrated the return of many works of art to their rightful owners.

The problem of stolen art must be recognized as a moral issue that can be solved only with morality as its primary basis. - Ronald S. Lauder, Chairman

Affiliated with the World Jewish Congress • www.commartrecovery.org • © 2010 All Rights Reserved Cultural Heritage & Arts Review, Summer 2011

UNESCO to Recommend a New Approach for Protecting Historic Cities: Bringing Technocracy to the People? By Maggie Gardner A new train station complex with high- are inscribed on the World Heritage inscribes sites onto the World Heritage rise offi ce towers; an eye-catching sky- List), it will further institutionalize List (and can delist sites, as in the Dres- scraper on the outskirts of town; an ur- a normative shift in the World Her- den Elbe Valley case); maintains a “list of ban redevelopment project that replaces itage regime away from static pres- World Heritage in Danger”; decides on crowded neighborhoods with wide ervation efforts and toward a more requests for assistance for the “protec- boulevards; a new bridge across a ma- complex concept of “living” herit- tion, conservation, presentation, or re- jor river – such development projects age in a “layered” landscape, in which habilitation” of inscribed heritage sites; are typical responses by cities to global change is not necessarily a bad word.4 and adopts rules of procedure and state- economic forces and the modern de- ments of general policy and priorities.7 mands of citizenry.1 But what happens In practical terms, the Recommenda- if the city has such “outstanding uni- tion will encourage states to increase In making these decisions under tight versal value” that its current form must, stakeholder participation in heritage time constraints at its annual ses- according to an international treaty preservation decision-making, a trend sions, the Committee relies heavily regime, be “preserved as part of the that should improve the democratic le- on several expert advisory bodies, spe- world heritage of mankind as a whole”?2 gitimacy of the World Heritage regime. cifi cally the International Council of The challenge for the World Heritage Monuments and Sites (ICOMOS), The pressures of development have Centre and Committee, however, will the International Union for Conserva- been colliding with preservation efforts be to accept whatever consensuses are tion of Nature and Natural Resources in historic cities with increasing regu- reached locally through these decen- (IUCN), and the International Centre larity over the last ten years. In 2009, tralized decision-making processes. for the Preservation and Restoration the World Heritage Committee took of Cultural Property (ICCROM). As the extreme step of removing Dresden I. The World Heritage Regime a result, these offi cial advisory bod- Elbe Valley (Germany) from the World The proposed HUL Recommendation ies “regularly predetermine” the ul- Heritage List after a major bridge was refl ects the long-term evolution of the timate decisions of the Committee.8 built in the middle of the protected World Heritage regime. Although the cultural landscape.3 In an attempt regime is based on a separate treaty The Convention provides that the to avoid further dramatic confronta- which provides for largely autonomous UNESCO Director-General appoint tions, the World Heritage regime has decision-making, it is situated under a Secretariat to assist the Commit- developed a new framework to help all the UNESCO umbrella and effectively tee, and in 1992, the World Herit- levels of government – local, regional, operates as a sub-organ.5 The 187 states age Centre was established within the national, and international – balance that are parties to the World Heritage UNESCO structure to provide greater the tensions between economic de- Convention comprise the General As- assistance. This Centre, with its per- velopment and historic preservation. sembly of States Parties, a fully rep- manent staff, has arguably increased resentational body that nevertheless the autonomous and technocratic na- At its thirty-sixth session this fall, the has very narrow competencies: to set ture of the World Heritage regime. General Conference of UNESCO is the budget and to elect the members expected to adopt this framework as a of the World Heritage Committee.6 States still play a pivotal role, however, new Recommendation on the Historic in initiating the two key functions of Urban Landscape (HUL). While the The World Heritage Committee, with Recommendation will be non-binding twenty-one members drawn from the Maggie Gardner is a Harvard Law “soft” law (and is intended for use by States Parties, performs the core func- School Human Rights Program Fel- all historic cities, whether or not they tions of the World Heritage regime. It low, Special Tribunal for Lebanon.

17 Cultural Heritage & Arts Review, Summer 2011

the World Heritage Committee: sites the nomination of sites. Although Recommendation Concerning the Preser- for the World Heritage List must be the World Heritage regime has thus vation of Cultural Property Endangered nominated by the territorial state and evolved toward a more participa- by Public or Private Works. Likewise, the the territorial state must submit the tory ethos, it is still criticized for the World Heritage Convention notes in its request for fi nancial assistance to help closed processes used at the national preamble the increasing threat posed to preserve a particular site.9 There is level.13 The proposed HUL Recom- cultural and natural heritage “not only also no real enforcement mechanism mendation may help close that gap. by the traditional causes of decay, but under the Convention. If the Com- also by changing social and economic mittee is displeased by the territorial II. Shifting Norms and Their Legal conditions which aggravate the situa- state’s actions, it can only threaten to Implications tion with even more formidable phe- delist the site – an outcome that is gen- Two trends mark the evolution of the nomena of damage or destruction.” erally a lose-lose situation – or move World Heritage regime. First is this the site to the list of World Heritage shift from reliance on technocratic ex- By the time of the Convention’s adop- in Danger, a “naming and shaming” pertise towards broader participation in tion in 1972, however, it was already tool that has proven fairly effective.10 decision-making, particularly in regard recognized that cultural heritage can to the determination of relevant values. be embodied not just in great monu- Thus the World Heritage regime can be The second is a parallel shift from a stat- ments, but also in modest and mun- criticized as an autonomous technocra- ic preservation perspective, with a focus dane aspects that have, over time, de- cy removed from the oversight of states on protecting particular monuments veloped cultural signifi cance. This – or it can be lauded as a complex sys- or buildings (indeed, one of the major 1972 Recommendation Concerning the tem of checks and balances that builds impetuses for the World Heritage Con- Protection, at National Level, of the consensus and ensures state consent on vention was the construction of Aswan Cultural and Natural Heritage also em- key decisions while insulating much de- Dam in Egypt and the international ef- phasized the need to consult with local cision-making from political pressure.11 fort in the 1960s to save important ar- authorities and residents regarding ur- chaeological heritage14), toward a more ban redevelopment in historic districts. Even if the latter view is taken, there contextual view of heritage and the is one key component of demo- safeguarding of “cultural signifi cance.”15 Finally, the 1976 Recommendation Con- cratic legitimacy lacking in the cerning the Safeguarding and Contempo- World Heritage regime, as it is cur- UNESCO’s earliest Recommendation rary Role of Historic Areas defi nes urban rently implemented: that of stake- regarding the preservation of urban areas as cohesive settings which include holder participation at the State level. landscapes – the 1962 Recommendation not only buildings, but also human ac- concerning the Safeguarding of the Beauty tivities, spatial organization, and the To be sure, the Committee has recog- and Character of Landscapes and Sites surrounding context. UNESCO has nized that “partners” in nominating and – generally treated landscape as static, not, however, issued any other Recom- managing protected sites include “in- “to be conserved and restored as if it mendation that touches on the manage- dividuals and other stakeholders, espe- were a monument.”16 The struggle to ment of historic urban areas since 1976. cially local communities, governmental, balance the preservation of urban areas non-governmental and private organi- with growing industrial and economic In the meantime, conceptions of cul- zations and owners.” It also modifi ed development is refl ected in (but was not tural heritage preservation have contin- its Operating Guidelines in 1999 to fully resolved by) the 1968 UNESCO ued to develop toward a more “layered” call explicitly on States to prepare their nominations for the World Heritage List “with the participation of a wide “Professor Moore also makes the argument that Peru has variety of stakeholders, including site preferential rights to the coins. The Spanish domination managers, local and regional govern- of what was the New World was brutal and horrifi c, he ex- ments, local communities, NGOs and plained. During the fi rst century, the Indian population other interested parties and partners.”12 apparently declined by nearly 80 percent due to overwork, malnutrition, and the introduction of diseases. It took over But these are not enforceable require- ments, and so far most states have not 300 years to replace that loss in population, and the coins implemented open procedures for are argued to constitute a natural resource that is protected under international law.”

18 Cultural Heritage & Arts Review, Summer 2011

UNESCO to Reccomend a New Approach... (cont’d) approach, with a greater appreciation itage and Contemporary Architecture Recommendation to be submitted for the urban setting’s interrelationship – Managing the Historic Urban Land- for adoption at the next session of the with intangible heritage and cultural di- scape, held in Vienna in May 2005. General Conference in the fall of 2011. versity. And the World Heritage regime That conference produced the “Vienna has progressively increased its empha- Memorandum,” which the General As- The draft Recommendation defi nes sis on continuous monitoring, buffer sembly of States Parties adopted as part “historic urban landscape” as “the ur- zones, and participatory processes. The of its Declaration on the Conservation ban area understood as a historic lay- new HUL Recommendation is intended of Historic Urban Landscapes (Reso- ering of cultural and natural values, to bring urban management back in line lution 15 GA 7) in October 2005.20 extending beyond the notion of ‘his- with these conceptual developments. toric centre’ or ‘ensemble’ to include The Vienna Memorandum, however, the broader urban context and its geo- This evolution of the World Herit- proved to be just a starting point. With graphical setting.”25 It calls on states to age regime has been possible because similarly heated debates arising during integrate HUL conservation principles the Convention itself is purposefully every Committee session, a new con- into development plans through regula- vague and delegates wide authority sensus was clearly needed on such fun- tion, community engagement, environ- to the Committee to defi ne key terms damental questions as what qualities mental impact assessments, and other and criteria, to establish implement- should be protected in historic cities, technical tools and to ensure the fi nan- ing procedures, and to determine op- and how those values could best be re- cial sustainability of traditional neigh- erational priorities.17 The Commit- tained.21 Repeat hot button issues in- borhoods (e.g., through micro credit tee has thus established a complex set cluded high-rise iconic buildings, trans- and public-private partnerships).26 of Operational Guidelines, which not portation infrastructure projects, and only clarify and rationalize its process- unsustainable tourism; at the same time, The proposed Recommendation in- es, but also institutionalize changing historic cities were grappling with new cludes a six-step action plan for states.27 substantive and procedural norms.18 pressures, like increased urbanization First, the relevant authority should map and environmental degradation, climate the city’s natural, cultural, and human The Guidelines, revised through a pro- change, and tensions between globaliza- resources.28 Second, authorities should cess involving both state comment and tion and local development needs.22 undertake consultative, participatory advisory body recommendations, are processes to gather stakeholder input treated as binding rules by the Com- The World Heritage Committee thus and reach a consensus as to which val- mittee, and over time they can infl uence decided in July 2005 to recommend ues to protect, and what aspects of the domestic legislation and processes.19 that the UNESCO General Confer- city transmit those values.29 Third, The proposed HUL Recommenda- ence adopt a new Recommendation on the potential vulnerability of those as- tion can be expected to have a similar the preservation of HUL. Five region- pects should be assessed, particularly “soft” law effect: to increase over time al expert meetings were held around in terms of socio-economic stresses the pressure on national authorities to the world, and three expert plan- and the impact of climate change.30 comply normatively and procedurally ning meetings were held at UNESCO with the Recommendation’s standards. headquarters in Paris. Meanwhile, the Fourth, with this background infor- UNESCO General Conference in July mation compiled and consensus over III. The Historic Urban Landscape 2009 confi rmed its intention to adopt values established, the relevant au- Initiative a new Recommendation on HUL.23 thority should draw up a city devel- In 2003, the World Heritage Com- opment or conservation strategy “to mittee found itself embroiled in a Based on the expert opinion, research, integrate urban heritage values and contentious debate over the planned and discussion gathered over the last their vulnerability status into a wider construction of a railway station and fi ve years, a preliminary report with a framework of city development.”31 offi ce complex in the center of Vienna, proposed Recommendation has now In particular, the action plan recom- a historic city inscribed on the World been circulated to member states for mends establishing which areas of the Heritage List. From this debate grew an their comments.24 These comments city, for development purposes, are international conference on World Her- will be integrated into a fi nal draft “strictly no-go,” which are “sensitive

19 Cultural Heritage & Arts Review, Summer 2011

areas” that will require careful attention and planning, 37, 1037 U.N.T.S. 151, pmbl. [hereinafter “World Her- and which are spaces where a greater range of develop- itage Convention”]. ment (including high-rise construction) may occur.32 3. See, e.g., Sabine Schorlemer, Compliance with the UN- ESCO World Heritage Convention: Refl ections on the Elbe Finally, governing authorities should prioritize ac- Valley and the Dresden Waldschlösschen Bridge, 51 GER. tions for conservation and development, and estab- YB. INT’L L. 321 (2009). lish partnerships and local management frameworks 4. See Ron van Oers, Managing Cities and the Historic Ur- to enable coordination among the relevant actors.33 ban Landscape Initiative – An Introduction, in MANAGING HISTORIC CITIES, supra note 1, at 7, 13-14; see also UN- IV. Evaluating the Proposed UNESCO Recommendation ESCO WORLD HERITAGE CENTRE, A NEW INTERNATIONAL What is notable about this proposed Recommendation is its INSTRUMENT: THE PROPOSED UNESCO RECOMMENDA- emphasis on decentralized, consultative processes and con- TION ON THE HISTORIC URBAN LANDSCAPE 3, available sensus-building. Of course, expert input will still be sought at http://whc.unesco.org/uploads/activities/documents/ and considered as part of these localized processes, but ide- activity-47-21.pdf [hereinafter “Preliminary Report”]. ally from a bottoms-up instead of a top-down perspective. 5. See World Heritage Convention, supra note 2, arts. 8(1) While the expertise provided by the advisory bodies has been & 14. The following summary of the structure of the invaluable to the formation and development of the World World Heritage regime is drawn from Diana Zacharias, Heritage regime, what is at stake are not just technical ques- The UNESCO Regime for the Protection of World Heritage tions, but questions of value – a distinction underempha- as Prototype of an Autonomy-Gaining International Institu- 34 sized by the World Heritage regime until recently. The tion, 9 GER. L.J. 1834, 1841-46 (2008). HUL Recommendation tries to correct for this old bias by 6. See Convention Concerning the Protection of the World putting values – as articulated by local stakeholders – fi rst. Cultural and Natural Heritage, supra note 2, arts. 8(1), 16(1). The addition of a UNESCO Recommendation to the weight 7. UNESCO, OPERATIONAL GUIDELINES FOR THE IMPLEMEN- of the World Heritage Committee’s Operating Guidelines TATION OF THE WORLD HERITAGE CONVENTION, WHC hopefully will push States to implement more participa- 08/01 ¶ 24 (2008), [hereinafter “Operational Guide- tory processes for nominating and managing heritage sites. lines”] (listing Committee’s main functions). With the inclusion of local consultation and consensus- 8. Zacharias, supra note 5, at 846, 853; see also Thomas M. building early in the process, confrontations like the Dres- Schmitt, Global Cultural Governance, Decision-Making den Elbe Valley bridge fi asco, which resulted primarily from Concerning World Heritage Between Politics and Science, parallel but disconnected decision-making at the local- 63 ERDKUNDE 103, 107-08 (2009). regional and national-international levels, can be avoided. 9. World Heritage Convention, supra note 2, arts. 11 & 19. 10. Schmitt, supra note 8, at 117-18; Zacharias, supra note 5, One must question, however, whether UNESCO, the at 1856, 1863. The Convention does specify a sanction, World Heritage Committee, and the World Heritage Cen- however, for a state’s failure to contribute to the fund for tre are assuming that the preservation instinct will always international assistance – that the state is not eligible to inform the values, and particularly the prioritization of val- serve on the World Heritage Committee while it is in ues, identifi ed through these local consultative processes. arrears. World Heritage Convention, supra note 2, art. The technocrats have accepted, even embraced, the fact 16(5). that change is a necessary component of urban life. The 11. See World Heritage Convention, supra note 2, art. 7 (de- question now is how much change can be accepted.35 It fi ning the regime as “a system of international co-opera- is not hard to imagine that in some instances, the interna- tion and assistance designed to support States Parties to tional experts may not like the local stakeholders’ answers. the Convention in their efforts to conserve and identify that heritage”); Zacharias, supra note 5, at 1861-62 (not- ing consultative and cooperative nature of the regime). 1. These examples are drawn from the recent experiences of 12. Operational Guidelines, supra note 7, ¶¶ 13, 39-40, 64. Vienna, St. Petersburg, Lhasa, and Dresden, respectively. See also Natasha Affolder, Mining and the World Heritage See UNESCO WORLD HERITAGE CENTRE, MANAGING Convention: Democratic Legitimacy and Treaty Compli- HISTORIC CITIES 121-29 (2010), available at http://whc. ance, 24 PACE ENVT’L L. REV. 35, 53 (2007). unesco.org/documents/publi_wh_papers_27_en.pdf. 13. Zacharias, supra note 5, at 1852; Affolder, supra note 12, 2. Convention Concerning the Protection of the World at 47. Cultural and Natural Heritage, 16 Nov. 1972, 27 U.S.T. 14. Zacharias, supra note 5, at 1835. See also Francesco Fran-

20 Cultural Heritage & Arts Review, Summer 2011

UNESCO to Reccomend a New Approach... (cont’d)

cioni, Thirty Years On: Is the World Heritage Convention 22. See Preliminary Study, supra note 16, at ¶¶ 12-18. Ready for the 21st Century?, 12 IT. Y.B. INT’L L. 13, 15 23. See, e.g., van Oers, supra note 4. (2002). 24. Preliminary Report, supra note 4. 15. See van Oers, supra note 4, at 13. 25. Id. 16. The following summary of past Recommendations draws 26. Id. from UNESCO EXECUTIVE BOARD, PRELIMINARY STUDY 27. Id. ON THE TECHNICAL AND LEGAL ASPECTS RELATING TO THE 28. Id. DESIRABILITY OF A STANDARD-SETTING INSTRUMENT ON 29. Id. THE CONSERVATION OF THE HISTORIC URBAN LANDSCAPE, 30. Preliminary Report, supra note 4. 181EX/29 ¶¶ 6-9 (2009) [hereinafter “Preliminary 31. Id. Study”]. 32. Id. 17. See, e.g., World Heritage Convention, supra note 2, arts. 33. Id. 10(1), 11(5), 13(4). 34. See Affolder, supra note 12, at 64. See also Jochen von 18. For examples, see Francioni, supra note 14, at 28-29 (re- Bernstorff, Procedures of Decision-Making and the Role garding cultural landscapes, biodiversity, and monitoring of Law in International Organizations, 9 GER. L.J. 1939, schemes); Affolder, supra note 12, at 54 (regarding buffer 1947 (2008) (“[M]ost regulatory decisions involve nor- zones, the list of World Heritage in Danger, and natural mative assumptions and trigger redistributive outcomes resource management). that cannot be reduced to seemingly objective scientifi c 19. See Zacharias, supra note 5, at 1848-51. inquiries; each time someone wins and someone loses.”). 20. van Oers, supra note 4, at 8. 35. van Oers, supra note 4, at 14-15. 21. Id. at 14.

Among the pre-eminent legal counsel in the art world, Herrick represents private and public collectors, foreign governments, galleries and other art-related businesses, museums and non-pro t organizations in sophisticated art transactions and complex litigations.

NEW YORK 212.592.1400 NEWARK 973.274.2000 PRINCETON 609.452.3800

.

SINCE 1928, COMMITTED TO YOUR SUCCESS. 21 Cultural Heritage & Arts Review, Summer 2011

Beyond Protection: Cooperation as a Tool to Cope with Unresolved Cultural Heritage Issues in Post-Confl ict Cyprus By Alessandro Chechi I. Introduction pendence from British rule in 1960.6 Cyprus has had a long history. Owing Through the 1960s, Greek Cypriots to its strategic position in the Eastern became increasingly estranged from Mediterranean,1 the island has been the Turkish Cypriots.7 The tensions conquered by various powers, such as erupted July 1974, when Turkish mili- the Greeks, Egyptians, Phoenicians, Ro- tary forces invaded Cyprus.8 Turk- mans, Byzantines, and Venetians.2 In ish troops landed on the north coast 1571, it was captured by the Ottoman of Cyprus and advanced to Nicosia. Empire and remained under its control By late August, Turkish forces had ex- for over three centuries.3 In 1878, the tended their control over the northern island was placed under British admin- 38% of the island,9 effectively mak- istration, under which it remained until ing 160,000 Greek Cypriots refugees. it was granted independence in 1960.4 Similarly, over 40,000 Turkish Cypriots Given the resultant diverse cultural in- left their homes in the south. The is- fl uence, the archaeological, historical, ar- land was hence divided, geographically, tistic, and traditional heritage of Cyprus ethnically, and politically.10 In 1983, is unique. Unfortunately, the country’s the Turkish military established the heritage has been victimized and threat- “Turkish Republic of Northern Cyprus” ened as a result of longstanding clashes (TRNC), but no country except Turkey 11 between Greek and Turkish Cypriots. has recognized the TRNC. Today, Cy- Mosaic, House of Eustolios, Cyprus. (By Wknight94 prus is divided by a long tract of barbed talk, CC-BY-SA-3.0 [www.creativecommons.org/ One of the Ottomans’ crucial legacies wire known as the Green Line that is licenses/by-sa/3.0], via Wikimedia Commons.) 12 is having brought numerous Muslim under the control of U.N. troops. Turkish invasion has been the loss of settlers to the island, creating a signifi - large part of Cyprus’s cultural heritage. cant ethnic minority. They established The invasion created deep and linger- Since 2003, when the Turk-Cypriot a system of “ethnarchy,” under which ing wounds that affected both com- government allowed Greek Cypriots to the population was divided by religious munities: the death and disappear- cross the border between the Republic affi liation, which allowed Cypriots ance of relatives and friends. Greek of Cyprus and the area under Turkish of Greek descent and the Greek-Or- Cypriots estimate that they lost 6,000 control,16 the country’s chief cultural thodox faith to co-exist with Cypriots lives from the confl ict, with an addi- institutions have been monitoring the 13 of Turkish descent and the Muslim tional 3,000 people missing. Turk- state of the cultural heritage in that part faith. However, the system eventually ish Cypriots estimate their death count of the island.17 This survey demonstrat- became the breeding grounds for the to be 1,500, with an additional 2,000 ed that the island’s cultural patrimony 14 Greek Cypriots’ struggle to unite the wounded. On top of these losses, is in large part lost or crumbling.18 The island with Greece. Turkish Cypriots, emotional wounds have deepened and damages are grave and in many cases ir- in turn, demanded the partition of the passed to new generations by one-sided reversible. Museums have been looted 5 island between Greece and Turkey. teachings in schools, propaganda, and and so have many private collections nationalistic perceptions of history.15 Beginning in the mid-1950s, tensions Alessandro Chechi holds a Ph.D. from between Greek and Turkish Cypriots Although the fate of objects should al- the European University Institute, intensifi ed, and they escalated dramati- ways be secondary to that of human be- Florence and is a Post-Doctoral Re- cally in the years following the inde- ings, another grave consequence of the searcher at the University of Geneva.

22 Cultural Heritage & Arts Review, Summer 2011

Beyond Protection (cont’d) of antiquities. Archaeological sites have suffered theft and despoliation.19 Some churches have been demolished or vandalized, whereas others are cur- rently being used as stables, mosques, nightclubs, or army barracks, if they have not simply been abandoned.20 In addition, various churches have had ecclesiastical icons stolen, and fres- coes and mosaics have been removed.21

Some of the most signifi cant recogni- tion of the degradation of the cultural heritage of the occupied part of the is- land has come from the Parliament of the European Union. In its declaration of September 2006 on the protection Sanctuary of Apollo Hylates, Cyprus. (By Wknight94 talk, CC-BY-SA-3.0 and preservation of the religious herit- [www.creativecommons.org/licenses/by-sa/3.0], via Wikimedia Commons.) age in the northern part of Cyprus,22 sarial solutions towards more collabora- II. The Violation of the Obliga- the Parliament acknowledged that, tive approaches. The article begins by tion to Safeguard Cultural Heritage in Occupied Territory Exemplifi ed: The since the Turkish invasion of 1974, 133 discussing the seminal Goldberg case, Goldberg Case churches have been desecrated, 78 have which illustrates the dynamic and mag- One of the most telling examples of the been transformed into mosques, 28 are nitude of the cultural losses suffered by fate of the cultural heritage of Cyprus’ being used as military hospitals, and Cyprus and exemplifi es the obligations turbulent history is provided by the 13 are being used as deposits. Count- owed by the States Parties24 to the trea- Goldberg case.25 In this case, an Indiana less ecclesiastical items, including more ties adopted by UNESCO (the United appellate court ruled that the defend- than 15,000 icons, have been illegally Nations Educational, Scientifi c, and ant, art dealer Peg Goldberg, must sur- removed and their locations remain un- Cultural Organization) for the protec- render possession of four Byzantine mo- known.23 The Parliament condemned tion of cultural heritage in times of saics, which had been illicitly removed the pillage of Greek Orthodox churches war. Against this backdrop, the article from Cyprus, to the plaintiffs, the Au- and monasteries and the removal of continues with a critical examination of tocephalous Greek-Orthodox Church their ecclesiastical items, and it called the pertinent practices of states and of of Cyprus and the Republic of Cyprus. on the EU Commission and the EU international and domestic courts in or- Council to take the necessary actions der to emphasize the customary nature The mosaics were affi xed to the apse to ensure the protection and restora- of three key principles: the principle of the Church of the Panagia Kanaka- tion of the cultural heritage of Cyprus. prohibiting acts of violence against cul- ria (Kanakaria Church) in the village of This article contributes to the literature tural heritage in wartime, the principle Lythrankomi, in the early 6th century about the so-called “Cyprus problem” prohibiting the exportation of cultural A.D. The mosaics, made of small bits by analyzing one of its facets – the ne- assets from occupied territories, and of colored glass, depicted Jesus Christ as cessity to rescue and safeguard the frag- the corresponding principle establish- a young boy in the lap of his mother, ile cultural patrimony of the island – in ing the obligation to return wrongfully the Virgin Mary, who was seated on a the light of the international law appli- taken objects to the country of origin. throne. Jesus and Mary were attended cable in the event of armed confl ict and The fi nal portion of this article looks to by two archangels and surrounded by military occupation. The main argu- the future, discussing how Cypriot her- a frieze depicting the twelve apostles. ment herein is that international cultur- itage can be restored and safeguarded al heritage law is imperfect, and, hence, through the development of coopera- The mosaics had been displayed in the the proper resolution of unsettled issues tive solutions based on such standards. Kanakaria Church for centuries, where requires neutralizing its fl aws through they became sanctifi ed as a holy relic. a shift from overly legalistic and adver-

23 Cultural Heritage & Arts Review, Summer 2011

Beyond Protection (cont’d)

Over the centuries, the mosaics sur- offi cials had authorized their export.27 Throughout history, armies have at- vived the period of iconoclasm and the tacked the territories of other tribes, cit- passage of time. However, by 1960, all The Church of Cyprus offered Goldberg ies, or nations, often with the defeated that remained of the original Kanaka- reimbursement for the purchase price in enduring the pillage of their cultural ria mosaics was the fi gure of Jesus, the exchange for the restitution of the mosa- patrimony. Objects representing im- bust of the North Archangel, and nine ics. When Goldberg refused, the claim- portant values of the defeated peoples, of the twelve apostles. Between 1959 ants fi led suit to recover the mosaics and such as religious articles, military sym- and 1967, the mosaics were restored prevailed, and the mosaics were returned bols, works of art, and archives, often under the sponsorship of the Depart- to Cyprus in 1991. They are now in the have been removed by the victors. But ment of Antiquities of the Repub- Byzantine Museum of the Archbishop the signifi cance of plunder does not lic of Cyprus, the Church of Cyprus, Makarios III Foundation, in Nicosia. necessarily reside in the economic value and Harvard University’s Dumbarton of the seized works. Art plunder has Oaks Center for Byzantine Studies. The Indiana appellate court resolved also been a symbolic dimension of war the case on grounds of domestic law, as by which victors demonstrate their su- Sadly, the mosaics were not spared by the it concluded that law of Indiana gov- periority over the vanquished. How- pillage that followed the 1974 Turkish erned every aspect of the action, from ever, the concept of sparing cultural invasion. At some point between 1976 the statute of limitations to the applica- heritage from the direct and indirect and 1979, the interior of the Kanakaria tion of substantive law. However, it is effects of armed confl ict has gained in- Church was vandalized and the mosa- interesting to note that the court also creasing acceptance since the end of the ics were removed. Immediately upon emphasized the relevance of two trea- 19th century. In effect, over the last learning that the mosaics were missing, ties adopted under the aegis of UN- hundred years the laws of war relating the Autocephalous Church of Cyprus ESCO: the Convention for the Protec- to the protection of cultural patrimony and the Republic of Cyprus informed tion of Cultural Property in the Event have evolved from a status of lawlessness several entities seeking their assistance: of Armed Confl ict (the “1954 Conven- to a rather elaborate system of humani- UNESCO, the International Council tion”),28 and the Convention on the tarian law, including cultural heritage of Museums (ICOM), the International Means of Prohibiting and Preventing norms applicable in armed confl ict.33 Council of Museums and Sites (ICO- the Illicit Import, Export and Transfer MOS), the Council of Europe, and Eu- of Ownership of Cultural Property (the A. The Development of Interna- ropa Nostra.26 The Republic of Cyprus “1970 Convention”).29 Both these trea- tional Cultural Heritage Law and the Customary Nature of the Obligation to also contacted European and American ties address illicit transfers of cultural Protect Cultural Heritage in Time of museums and international auction property, but only the 1954 Conven- War: Treaty and Diplomatic Practice houses. As a result of these efforts, in tion seems relevant to the return of the The principle of prohibiting acts of vio- 1989, the Autocephalous Church of Kanakaria mosaics because the 1970 lence against immovable cultural herit- Cyprus and the Republic of Cyprus Convention is not retroactive and pri- age during armed confl ict has developed located the mosaics, which by then marily targets peacetime impoverish- through a consistent and unambiguous had come into the possession of Indi- ment of cultural heritage. While one of treaty practice that has its roots in the anapolis art dealer Peg Goldberg. She the 1970 Convention’s provisions deals 34 30 “Lieber Code” of the 19th century, had purchased the mosaics in 1988 in with the problem of war-time looting, which was designed to regulate the con- the free-port area of the Geneva airport the provision can be seen merely as an duct of the Union forces in the American from a Turkish art dealer, Aydin Dik- adjunct to the much more detailed re- Civil War. The infl uence of the Lieber man, for about $1 million. Goldberg quirements of the 1954 Convention 31 Code’s treatment of cultural property had proceeded with the purchase even and both its First Protocol of 1954 can be traced through the Brussels Dec- though she was aware that the mosaics (the “1954 Protocol”) and Second Pro- 35 32 laration of 1874, the Oxford Manual came from an area occupied by foreign tocol of 1999 (the “1999 Protocol”). of 1880,36 the Hague Conventions military forces. Moreover, Goldberg re- of 1899 and 1907 and their annexed III. The Return of Cultural Objects ceived no convincing evidence – as was Regulations,37 and the Roerich Pact of alleged by the seller – that the mosa- Removed as a result of War and Oc- cupation under Contemporary Interna- 1935. 38 The Hague Convention of 1907 ics had been found in the rubble of an tional Law declared that buildings dedicated to reli- extinct church or that Turkish Cypriot

24 Cultural Heritage & Arts Review, Summer 2011

gion, art, science, education, and historic monuments should further provides that “States Parties” must respect the cul- not to be attacked or bombarded absent military necessity.39 tural property located both in their own territory and in other The Roerich Pact proclaimed that museums, monuments, states, and it prohibits the destruction of cultural property and scientifi c and cultural institutions are to be considered as during armed confl ict and during periods of belligerent oc- “neutral and as such respected and protected by belligerents.”40 cupation.46 Other provisions focus on the removal of cultural assets from occupied territories. States Parties must prohibit, The fi rst substantial anti-art-plunder effort of the modern era prevent, and, if necessary, put a stop to any form of theft, occurred even earlier, though: the Final Act of the Congress pillage, or misappropriation of cultural property;47 an occu- of Vienna of 1815, whereby the victorious European Powers pying force is obliged to aid the occupied state in the preser- decided that all the artworks looted during Napoleon’s cam- vation of its patrimony.48 The Convention does not directly paigns of 1796 and 1797 must be returned to their countries address the issue of restitution of wrongfully removed objects, of origin. Since then, other international law instruments which is regulated by the 1954 Protocol. The 1954 Protocol have reinforced the rule that the plunder of cultural property obligates occupying powers to prevent and avoid exporta- is unlawful and that all looted works should be returned for tion of cultural objects from occupied territories, and, in the the sake of the integrity of the cultural heritage of every coun- event that such exportation occurs, to provide restitution.49 try. In this sense, the provisions of the Regulations annexed to the Hague Convention of 1907 merit closer examination. More recently, the looting and destruction endemic to the Article 56 of the Regulations states that all cultural objects, Gulf Wars and the Yugoslav war have led to three further de- including state property, are to be treated as private property velopments. The fi rst is the establishment of the Interna- and, hence, can neither be confi scated (Article 46) nor be sub- tional Criminal Tribunal for the former Yugoslavia (ICTY). jected to plunder (Article 47) by occupying forces. The obli- The ICTY statute establishes personal liability for violations gation to return cultural property was reaffi rmed in the post- of the laws and customs of war, which include the “destruc- First World War peace treaties and in other treaties relating to tion or willful damage done to institutions dedicated to the redistribution of cultural objects following the dissolution religion, charity and education, the arts and the sciences, of empires and the recognition of newly independent states.41 historic monuments and works of art and science.”50 The statute establishing the International Criminal Court (ICC) State practice further developed during and in the after- also contains provisions concerning crimes against cultural math of the Second World War, primarily as a reaction to heritage,51 which apply to both international and non-inter- the widespread damage and destruction during the war and national armed confl icts and classify as a war crime any at- Nazi confi scations. The Allies took steps to prevent spoli- tack directed against buildings that are dedicated to religion, ation before the end of the war by adopting the “London education, art, or science or that are historic monuments. Declaration,”42 which warned enemy states and neutral coun- Article 7 of the Law on the Establishment of Extraordinary tries that the Allies intended “to do their utmost to defeat Chambers in the Courts of Cambodia for the Prosecution of the methods of dispossession practiced by the [Nazis]” and Crimes Committed during the Period of Democratic Kam- reserved the right to annul transfers or dealings, not only puchea is also noteworthy. It states that the Extraordinary for those that took the form of open looting and plunder, Chambers in the Courts of Cambodia (ECCC) will have “the but also for forced sales and other “sham” transactions de- power to bring to trial all suspects responsible for the de- signed to disguise the true nature of the underlying transfers. struction of cultural property during armed confl ict pursu- ant to the 1954 Hague Convention . . . .”52 Quite clearly, After the War, UNESCO adopted the Hague Convention of the ICTY, the ICC, and the ECCC follow the precedent 1954. 43 In its preamble, the 1954 Convention states that established by the Nuremberg Tribunal a half-century ear- “damage to cultural property belonging to any people what- lier,53 which provided for the conviction Nazi offi cials for soever means damage to the cultural heritage of all mankind, plundering artworks in occupied lands and held that the since each people makes its contribution to the culture of 1907 Hague Convention was recognized by all civilized na- the world” and that “the preservation of the cultural heritage tions as being declaratory of the laws and customs of war.54 is of great importance for all peoples of the world.”44 Cul- tural property is thus given special legal protection under the The second development is the adoption of the 1999 Protocol, Convention. In essence, the 1954 Convention obligates the which (i) extends the scope of the regime to non-internation- “High Contracting Parties” (countries that have both signed al armed confl icts;55 (ii) defi nes clearly and restrictively the and ratifi ed the agreement) to take special care to avoid dam- limits of “military necessity”;56 (iii) introduces the new system age to “movable or immovable property of great importance of “enhanced protection”;57 (iv) establishes individual crimi- to the cultural heritage of every people.”45 The Convention nal responsibility;58 and (v) sets up a permanent committee to

25 Cultural Heritage & Arts Review, Summer 2011

Beyond Protection (cont’d) supervise the operation of the Protocol.59 The 1999 Protocol remedy for wrongful acquisitions. The fi rst of such initia- contains two specifi c provisions concerning the removal of tives is the Principles on Nazi-Confi scated Art (the “Wash- cultural assets, but it leaves the issue of restitution to existing ington Principles”), adopted by forty-four states as part of treaty and customary norms. Article 9 of the 1999 Protocol the 1998 Washington Conference on Holocaust-Era Assets.66 states that an occupying state “shall prohibit and prevent . . Although non-binding, the Washington Principles call for . any illicit export, removal or transfer of ownership of cul- a “just and fair solution” and impose upon nations a moral tural property; any archaeological excavation . . .”; and “any commitment to identify and publicize stolen artworks to as- alteration to, or change of use of, cultural property which is sist their return to their original owners.67 For these reasons, intended to conceal or destroy cultural, historical or scientifi c the Washington Principles could serve as a foundation for the evidence.”60 Article 21 provides that “each Party shall adopt production and interpretation of national substantive law. 68 such legislative, administrative or disciplinary measures . . . Another such effort is Resolution 1205 on Looted Jewish Cul- to suppress . . . any illicit export, other removal or transfer of tural Property of the Parliamentary Assembly of the Council ownership of cultural property from occupied territory . . . .”61 of Europe, adopted on November 4, 1999, which calls mem- ber states to give consideration to ways in which they may be The third development is the shift of the prohibition against able to facilitate the return of looted assets.69 In 2000, the looting and the obligation of restitution into U.N. Security Vilnius International Forum on Holocaust Era Looted Cul- Council Resolutions 686 (1991)62 and 1483 (2003).63 Adopt- tural Assets was convened in order to bring the Washington ed under Chapter VII of the U.N. Charter, the latter Resolu- Principles and the Council of Europe Resolution into effect.70 tion specifi cally addresses Iraqi looting in the wake of the fi rst Lastly, in the 2009, the Holocaust Era Assets Conference, Gulf War: “[]Member States shall take appropriate steps to fa- convened under the auspices of the European Union and cilitate the safe return . . . of Iraqi cultural property and other of the Czech Presidency, adopted the Terezin Declaration.71 items of archaeological, historical, cultural, rare scientifi c, and religious importance illegally removed from the National Mu- B. The Development of International Cultural Heritage seum of Iraq, the National Library, and other locations in Iraq Law and the Customary Nature of the Obligation to Protect since the adoption of resolution 661 (1990) of 2 August 1990, Cultural Heritage in Time of War: Judicial Practice including by establishing a prohibition on trade in or trans- Jurisprudence, both in domestic U.S. courts and abroad, like- fer of such items and items with respect to which reasonable wise prohibits acts of violence against immovable works of suspicion exists that they have been illegally removed . . . .”64 cultural heritage and the exportation of works of art from occupied territories. This case law strengthens the bind- One fi nal example of treaty practice, the Declaration Con- ing nature of these principles, and, generally, it supports cerning the Intentional Destruction of Cultural Heritage restitution to the country of origin as a preferred remedy. of 2003, bears mentioning. The Declaration was adopted unanimously by the UNESCO General Conference to con- In the renowned case of Menzel v. List,72 a New York demn the gratuitous destruction of the Buddhas of Bami- trial court ordered the restitution of a painting by rely- yan by the Taliban in 2001. Although the Declaration is ing on the Regulations annexed to the 1907 Hague Con- not binding (i.e., it only creates a moral or political com- vention and on foreign case law, such as the Nurem- mitment), it is important because it establishes (i) that the berg Tribunal judgments and the Mazzoni c. Finanze deliberate destruction of important items of cultural herit- dello Stato decision.73 Signifi cantly, the Menzel Court rec- age constitutes a breach of customary international law and ognized that there was a general consensus in internation- (ii) that state and individual criminal liability derive from al law on the subject of restitution of looted materials.74 both intentional destruction and failure to take appropriate protective measures. Furthermore, it targets state treatment Another important U.S. case is Altmann v. Republic of Aus- of cultural property located within its own borders, thereby tria,75 which involved six Gustav Klimt paintings confi scat- furthering the erosion of the shield of territorial sovereignty ed by the Nazis in 1938 that eventually became part of the even in situations other than war or military occupation.65 collection of the state-owned Belvedere Museum of Vienna. The case is important for its treatment of sovereign immu- In addition to “hard law,” “soft law” efforts relating to the nity. In 1998, Maria Altmann, an heir to the rightful owner, mass looting of Jewish cultural property during the Second formally requested the restitution of the paintings, but the World War signal that restitution is considered the proper Austrian Gallery denied her request. Due to the high fi ling

26 Cultural Heritage & Arts Review, Summer 2011

fee required by Austrian law, Altmann sought recovery in the Central District of California, alleging expropriation of prop- erty in violation of international law. In a decision affi rmed at both the federal appellate and U.S. Supreme Court levels, the district court denied Austria’s sovereign immunity defense and determined that it had jurisdiction on the grounds that (i) the paintings were taken in violation of international law; (ii) the paintings were in possession of an agent of the Aus- trian government at the time of the case; and (iii) the mu- seum was engaged in commercial activity in the United States (publishing and advertising activities of the Klimt paintings).

Outside the United States, the need to safeguard archaeo- logical sites in occupied territories has been emphasized at various times by the Israeli Supreme Court. In the Kandu The Old Town of Dubrovnik. (By gari.baldi [http://www.fl ickr.com/photos/gari- case,76 the Court held that the occupying power is bound baldi/328544470/] CC-BY-SA-2.0 under customary international law to protect and preserve [www.creativecommons.org/licenses/by-sa/2.0], via Wikimedia Commons.) archaeological treasures. This ruling was confi rmed in the of 1958 between Cambodia and Thailand and was centered Hess case,77 in which the Court also relied on the 1954 Con- on the issue of territorial sovereignty with regard to the area vention to support its reasoning. In the Shahrur case, the where the temple of Preah Vihear is located. Eventually, the Court relied on the obligation imposed on the occupying ICJ found that the temple belonged to Cambodia, and, ac- power by Article 56 of the Regulations annexed to the 1907 cordingly, it determined that “sculptures, stelae, fragments Hague Convention to approve the prosecution before mili- of monuments, sandstone model and ancient pottery which tary courts of offenders under Jordanian antiquities law.78 might . . . have been removed from the Temple or the Temple area by the Thai authorities” should be returned.81 In the In 2008, the Italian Consiglio di Stato closed litigation over Genocide case the ICJ addressed, inter alia, the problem of the Venus of Cyrene by reshaping the foundation of the obli- the destruction of historical, religious, and cultural property gation to return objects removed as a result of war and colo- during the Balkan war. It concluded that the targeting of rep- nization. The Court affi rmed that Italy was under an obliga- resentative cultural assets cannot be considered to be a geno- tion to return the sculpture to Libya by virtue of a general and cidal act within the meaning of the Genocide Convention.82 autonomous customary principle. According to the Court, this principle is the corollary of the interplay between the The European Court of Human Rights (ECtHR) dealt with principle prohibiting the use of force and the principle of self- a restitution claim in the Beyeler case.83 The ECtHR found determination of peoples. The Court explained that the right a violation of the right to property as set forth in Proto- to self-determination has come to include the right to protect col No. 1 to the European Convention on Human Rights both the cultural identity and the material cultural heritage (ECHR) and hence allowed the applicant to retain the Van linked either to the territory of a sovereign state or to peoples Gogh painting at stake. Importantly, the ECtHR has also subject to a foreign government. Consequently, the restitu- rendered various judgments in respect to the dispossession of tion of artworks was dictated by the safeguarding of such cul- private property in the northern part of Cyprus.84 However, tural ties whenever these had been jeopardized or wiped out this complex jurisprudence does not aim to protect cultural by acts of war or the use of force during colonial domination.79 heritage per se, that is, with the aim of safeguarding its inher- ent qualities. Rather, these decisions demonstrate that the Contrary to this copious domestic jurisprudence, interna- ECHR system sees human rights as individual rights, not as tional courts and tribunals have rarely adjudicated questions petitions for common goods. Thus, the ECtHR seems unpre- of restitution. For example, the International Court of Jus- pared to accommodate non-economic, collective interests.85 tice (ICJ) was called on to adjudicate a restitution claim in the case Liechtenstein v. Germany, but the case was dismissed The ICTY has handed out various convictions for crimes on technical grounds of lack of jurisdiction ratione temporis arising out of the post-1991 destruction and profanation of before reaching discussion of the merits.80 In the case con- mosques, churches, and other sites of educational, religious, cerning the Temple of Preah Vihear, the issue of restitution and cultural relevance. In Strugar, the commander of the of cultural property was incidental to that of the delimita- Yugoslav Peoples Army forces received an eight-year sentence tion of national boundaries. The case resulted from the war under the principle of “command responsibility” for hav-

27 Cultural Heritage & Arts Review, Summer 2011

Beyond Protection (cont’d) ing ordered attacks on targets in the herein – the principle prohibiting acts against cultural sites and monuments Dubrovnik region and failing to pro- of violence against cultural heritage, the and the pillage or misappropriation of hibit attacks on the Old Town of Du- principle prohibiting the exportation cultural assets, not only by their own brovnik. 86 The ICTY Trial Chamber of cultural assets from occupied ter- soldiers, but also by the civilian popula- placed signifi cant weight on the fact ritories, and the corresponding princi- tion. They also failed to comply with that Old Town is included on the World ple establishing their restitution to the the obligation, as set forth in the 1954 Heritage Convention list.87 The ICTY country of origin – have achieved the Protocol, to prevent the exportation of also established that the targeting of status of customary international law.91 cultural assets from the occupied part cultural assets belonging to a culturally Quite clearly, the rationale underlying of the island. Turkey was certainly distinct group constituted an element this special protection regime is one of bound by the 1954 Convention and of crimes against humanity, specifi cally key principles of general international its First Protocol at the time of the in- of the crime of persecution, if the act is law, namely the principle prohibiting vasion.93 Further, in all events, much committed with discriminatory intent. the use of force, an obligation which of the Convention can be considered The ICTY acknowledged the essential is rooted in Article 2, paragraph 4, of binding as customary international law. connection between the intent to de- the Charter of the United Nations. stroy a group of people and the destruc- Of note, similar allegations were made tion of cultural works and religious sites Furthermore, the legal instruments against the United States with respect that form part of that group’s heritage adopted in order to safeguard cultural to the ransacking of the Iraqi National and identity.88 Moreover, the ICTY af- heritage in the event of armed confl ict Museum in April 2003. Looters and fi rmed that the 1907 Hague Conven- and occupation emphasize that the fail- vandals took advantage of the void cre- tion and its Regulations as well as the ure to protect cultural heritage is a vio- ated by the sudden collapse of the Iraqi 1954 Convention codify customary lation of the laws and customs of war infrastructure to break in the museum international law in various occasions.89 and hence is a war crime – though not and carry away thousands of priceless as serious as crimes involving human items. U.S. soldiers were not ordered The 2004 decision of the Eritrea-Ethi- rights – and that the destruction, sei- to protect the museum and archaeologi- opia Claims Commission (EECC) con- zure, and illicit exportation of artworks cal sites from looting during the inva- cerning the destruction of the Stela of from occupied territories entails state sion or the occupation, but they were Matara is also relevant to the present responsibility as well as individual crim- ordered to protect the Oil Ministry. Ac- survey of case law. Eritrea’s Central inal responsibility. International norms cordingly, many commentators main- Front brought a claim against Ethiopia against plundering or destroying cultural tained that the United States had vio- concerning the (alleged) deliberate de- materials have become clearer and more lated the customary international law struction of the Stela of Matara – one specifi c, to the point that individual vi- norms embodied in the 1954 Conven- of the most signifi cant archaeologi- olators have been convicted in interna- tion by failing to prevent the looting.94 cal sites in Eritrea – during the Ethio- tional courts for war crimes. A positive pian occupation of Eritrea from 1998 obligation to prevent or halt the looting However, there are obvious differences to 2000. The Commission held that by non-state actors fi ts the pattern of between the two cases. At the time of Ethiopia was liable under customary development and is consistent with the the Turkish invasion, cultural heritage international humanitarian law for the need to protect the property at stake.92 law was still in its infancy, and the in- destruction of the stela.90 The deci- ternational community did not place sion confi rmed that the protection of When viewed within this framework, much emphasis on the violation of the cultural property in the event of armed it appears that the actions and omis- norms involving the protection of the confl ict properly belongs in customary sions of the Turkish government and monuments and sites located in the oc- international law and that, as such, it is of Turkish offi cials with respect to the cupied part of the island. By way of binding even on non-signatory States. heritage of the Greek Cypriot commu- contrast, in 2003 cultural heritage law nity after 1974 constitute interferences constituted an established branch of in- C. An Appraisal of the sort contemplated by the 1954 ternational law, encompassing clear and The numerous examples of interna- Convention. The Turkish government widely recognized obligations. Moreo- tional practice examined above provide and Turkish commanders were under ver, the United States had received pre- evidence that the principles considered the obligation to prevent any attack invasion warnings from leading experts

28 Cultural Heritage & Arts Review, Summer 2011

and specialized organizations that cultural sites in Iraq would take into account the specifi city of art and culture and of the need protection from bombing and looting.95 Regrettably, unique features of the international art market – which could such warnings were ignored. The international outcry that balance the parties’ interests against the concerns of justice followed the looting of the National Museum confi rmed that and fairness – and attempt to reconcile the various moral, the international norms prohibiting attacks and seizure of cul- historical, cultural, fi nancial, and legal issues involved. The tural assets and imposing an affi rmative obligation to prevent safeguarding of the values enfolded in cultural assets requires others from carrying out such assaults have gained acceptance. more than defi nite and enforceable rulings based on the in- terpretation of the imperfect legal regime by a neutral judge. The two cases also present an important commonality, how- ever, as they reveal some of the weaknesses of the existing le- Second, cooperative endeavors aim to attain specifi c results. In gal framework governing cultural heritage. The fi rst problem effect, the international practice surveyed above demonstrates is that the 1954 Convention and its Protocols are not retroac- that cooperation may serve as a mechanism for (i) the physical tive, a problem embodied in the doctrine of inter-temporal protection of cultural assets; (ii) the re-contextualization of law. This doctrine maintains that juridical facts must not materials in their original cultural context; (iii) the strict as- be assessed based on currently applicable international law sessment of the possessors’ title in the light of reasonable due rules, but only on the law in force at the respective time. diligence requirements;99 and (iv) the non-application of cum- Second, the system of the 1954 Convention lacks compli- bersome domestic norms – such as statutes of limitations and ance mechanisms and a binding mechanism for settling anti-seizure statutes – that normally impede restitution claims. disputes regarding its interpretation and implementation. Third, customary norms may be vague and treaty provisions IV. Cultural Cooperation as a Tool for Post-Confl ict may not be self-executing. Consequently, adjudicators may Reconciliation in a Divided Cyprus dismiss claims based on this legal framework because of the Given the existing diplomatic, political, and social enmity lack of guidance for their application on the national plane.96 deriving from the 1974 military invasion, it is tempting to conclude that peace between the Greek and Turkish com- In spite of such shortcomings, international practice demon- munities in Cyprus is unattainable. For example, the most strates that international cultural heritage law in general, and recent attempt to solve the Cyprus division, the Annan Plan, the rules codifi ed in the 1954 Convention and its Protocols was overwhelmingly accepted by the Turkish Cypriots but in particular, have contributed substantially to the safeguard- rejected by Greek Cypriots in a 2004 referendum.100 In ing of objects of cultural heritage. More precisely, the body some instances, personal bias can also be a factor. There are of law relating to the protection of cultural heritage in war- those who believe that the current situation is the fault of time has actually acted as a catalyst for the affi rmation and Turkey, that Cyprus is essentially Greek, and that the will dissemination of a cooperative approach to the problems of of the majority was denied through the invasion. Oth- protection and restitution. In effect, many rules have been ers believe the trouble started because the Greek Cypriots employed to guide the production and interpretation of na- viciously attacked and drove the Turkish Cypriots into en- tional substantive law and to shape collaborative solutions. claves in the 1960s, where they suffered a ten-year economic embargo that ended when Turkey intervened in 1974. But Two aspects of cooperative approaches bear mentioning here. biased perspectives only prolong the Cyprus problem. The First, cooperative approaches aim to recognize and protect leaders of the two communities, as well as the states and the the “human dimension” of cultural heritage. This is a com- organizations involved in the post-confl ict and peace-build- posite notion that springs from the unique nature of cultural ing processes in Cyprus, should endeavor to address the un- assets. On the one hand, it stands for the special feelings that derpinning beliefs that stand in the way of moving toward cultural heritage evokes from people because of its symbolic, resolution.101 In this respect, Amadou-Mahtar M’Bow, the emotional, religious, and historical qualities: “Works of art former Director-General of UNESCO, called on states to re- become the visible medium for the identity of the group con- turn stolen art treasures and understand “the affl iction a na- cerned which is refl ected in the care lavished on them, the tion can suffer at the spoliation of the works it has created” ceremonies in which they are paraded, and the memory in and the “resentment and discord which prejudices the estab- which they are held when removed from the group by a for- lishment of lasting peace and harmony between nations.”102 eign power.” 97 On the other hand, such symbiotic dialectic between tangible and intangible elements explains why many In this respect, it is worth emphasizing that, in the last dec- states struggle to have their masterpieces returned.98 It fol- ade, both the Greek and Turkish Cypriot communities have lows that protection of the human dimension of cultural her- increasingly resorted to cooperative endeavors. It is impor- itage requires that disputes be dealt with through systems that tant to mention that, since 2003, when accession of the Re-

29 Cultural Heritage & Arts Review, Summer 2011

Beyond Protection (cont’d) public of Cyprus to the European Un- the planners of the two communities.105 to its call for better care of such herit- ion became imminent, there has been age. The Orthodox faith is central to an agreement between the two govern- Another example concerns the heritage Greek Cypriot identity, which is ex- ments to open crossing points to allow of the city of Famagusta. Founded as pressed physically in the churches and Cypriots from either side to visit their early as the 3rd century B.C. and lo- monasteries scattered throughout the is- former homes and participate in each cated on the east coast of Cyprus, which land. Regrettably, there have been little other’s economies. Trade is now allowed is currently under Turkish control, this efforts to safeguard them. However, the across the Green Line and there is coop- city has played a pivotal role in the cul- Turkish government cannot continue to eration between municipalities in rela- tural relations between the Christian ignore this problem if it intends to ob- tion to issues such as sewerage and pow- and Islamic worlds. The treasures of tain European Union membership. Fur- er.103 The increased cooperation extends this city combine medieval Christian thermore, it has become a human rights to cultural heritage protection as well. churches, Venetian gateways, Ottoman issue as the Church of Cyprus has made The examples that follow confi rm that mosques and baths, and some of the an appeal to the ECtHR against Turkey. cooperative efforts in this fi eld originate most impressive city walls to be seen The Church alleged the violation of the from the rules codifi ed in existing trea- anywhere in the world. This beautiful freedom of religion and discrimination ties. Furthermore, these examples illus- historic city is now in a severe state of on grounds of religion – for the contin- trate that the aim to safeguard cultural deterioration. Major threats come from uing refusal to allow access to the Chris- heritage – because of its signifi cance for insuffi cient management, inappropriate tian Orthodox places of worship in the a given people or nations – entails the construction, and neglect. While sev- occupied areas – and demanded dam- attainment of specifi c results, such as eral world organizations have tried to ages for being denied use of property.109 the preservation and the re-contextual- draw attention to the importance of the ization of wrongfully-removed cultural ancient heritage of Famagusta, TRNC Three further examples demonstrate assets. It is important, however, to dis- offi cials have shown little interest in that the Church and the Republic of tinguish the cooperative efforts between giving a special status to the city.106 In Cyprus have taken proactive action in the two communities on the island from 2008, Greek and Turkish Cypriot lead- order to protect the integrity of the initiatives involving foreign entities. ers reached an agreement in an attempt national heritage through cooperation to raise the awareness of the internation- with foreign entities. The fi rst relates to As far as the former are concerned, the al community about the plight of their the bilateral agreement with the United fi rst example of cooperation of note city in an effort to save its heritage.107 States in 1999. Pursuant to this agree- is the well-known Master Plan for ment, the United States and the Repub- Nicosia. Initiated in 1979 by the two Also of note is the fi rst offi cial meeting lic of Cyprus have engaged in a fruitful mayors of Nicosia, it aimed to revital- between the religious leaders of the two cooperation aimed to reduce the incen- ize the city and to develop tourism. communities, Chrysostomos II, Ortho- tive to pillage and to protect the integrity Implementation of the plan began in dox Archbishop of Cyprus, and Ahmed of sites for scientifi c study. Essentially, 1989 with the development of a series Yonluer, religious head of Turkish Cyp- by signing this agreement, the United of bi-communal projects, funded by a riots, which, because of the efforts of the States recognized Cyprus’s import re- variety of sources, including the United President of the Parliamentary Assem- strictions on a large number of desig- Nations High Commissioner for Refu- bly of the Council of Europe, included nated materials, which include Byzan- gees, the United States Aid Agency, discussion of the threats to the churches tine mosaics and frescoes, ethnological the United Nations Development Pro- on the northern part of the island. In- materials, and archaeological objects.110 gramme, and, since 2004, the European deed, the safeguarding of the churches Union. As a result of the Master Plan, and monasteries located in the north The second example concerns the agree- many cultural heritage sites common to of the island has been a contentious is- ment concluded between the Church both communities within Nicosia have sue between the two communities.108 of Cyprus and the Menil Founda- been conserved and have won numer- tion of Texas regarding the return of ous Europa Nostra awards.104 Perhaps The Orthodox Church hierarchy has thirty-eight 13th century pieces re- the greatest achievement of the Nicosia been increasingly frustrated by the lack moved from the church of Agios Eu- Master Plan, though, has been the de- of response from the government con- femianos in the village of Lyssi. Ex- velopment of a continuous dialogue by trolling the northern part of the island hibited today in the Foundation’s

30 Cultural Heritage & Arts Review, Summer 2011

museum in Houston, where they have been recomposed and restored, the frescoes depicting Christ Pantocrator and the Virgin are scheduled to be returned to Cyprus by 2012.111

The last example relates to the involvement of foreign ex- perts and non-governmental organizations in the safeguard- ing of the national patrimony. This aspect is noteworthy because it emphasizes that civil society may play a pivotal role in the recognition and promotion of general public in- terests. The participation of these stakeholders is essential in the defi nition and implementation of public policies, for raising awareness among decision-makers and among the public at large and for stimulating grass-root initiatives.

These initiatives demonstrate that cooperation in the fi eld of cultural heritage is crucial for the success of post-confl ict pro- Interior of Lazarus Church, Larnaca, Cyprus. (By Hannes Grobe/BHV CC- cesses and for boosting national and regional reconciliation. BY-3.0 [www.creativecommons.org/licenses/by/3.0], via Wikimedia Commons.) As a carrier of collective memory, cultural heritage forms the basis of collective identity and fosters the political and social This paper has sought to emphasize that Cyprus’ cultural her- stability of states. The past is transmitted into the present itage can be rescued and protected as a whole only by build- through monuments, libraries, and historical landmarks as ing on existing international cultural heritage law. Conse- well as through myths, fables, music, language, and so forth.112 quently, it has analyzed the current state of normative law As mentioned above, the symbolic signifi cance of cultural her- applicable to destroying and removing cultural materials dur- itage helps motivate efforts to restore national identities and ing wartime and military occupation, which gives custom- collective memories through the repatriation of art treasures ary status to principles prohibiting attacks against cultural despoiled in the past.113 Moreover, the development of cooper- heritage, prohibiting the exportation of cultural assets from ative endeavors proves that cultural heritage can be associated occupied territories, and establishing their restitution. How- with development policies as an invaluable resource to provide ever, these principles are not always followed. Accordingly, adequate responses to many economic and social challenges. this paper has proposed a shift from overly legalistic and ad- versarial solutions towards a widespread use of cooperative With respect to the issue of post-confl ict reconciliation, it is means. But this approach does not require the rejection of worth recalling the words of Johan Galtung, who noted that legal norms. To the contrary, this paper has advocated view- peace-building strategies invariably require three basic condi- ing the existing legal framework not only as a container of tions: (i) empathy, i.e., willingness to understand the underly- binding rules but also as a catalyst for the affi rmation and ing reasons of the respective positions; (ii) openness, i.e., will- dissemination of a cooperative approach to the problems of ingness to enter into dialogue with the other party; and (iii) restitution, protection, and conservation of cultural assets. creativity, i.e., willingness to explore alternative solutions.114 Galtung’s position is in line with that of this author and this Available international practice demonstrates that – even when paper: encouraging a shift from overly legalistic and adver- it is not binding law or is not otherwise directly applicable – in- sarial solutions toward a principled approach to post-confl ict ternational cultural heritage law contributes to defi ning stand- processes that puts greater emphasis on cooperation and ards that have been adopted willingly by state and non-state builds on the principles and standards enshrined in the exist- actors alike in order to cope with diffi cult post-confl ict issues, ing legal framework, regardless of the inherent defi ciencies in and the stakeholders in such situations should pursue coopera- international cultural heritage law. This alternative approach tive efforts in attempting to comply with these standards. To requires a fi rm commitment to dialogue among individuals, act otherwise would perpetuate the causes of the confl ict. Such communities, and countries, which entails recognizing “the standards call for (i) the physical protection of cultural assets; value of each civilizing experience as an invaluable and in- (ii) the re-contextualization of materials; (iii) the strict assess- tegral part of the commonly shared human experience.”115 ment of the possessors’ title; and (iv) the non-application of the domestic norms that impede access to courts and restitution. Furthermore, it has been emphasized that cooperative endeav- V. Concluding Remarks ors also facilitate the recognition and protection of the “human dimension” of cultural heritage, that is, the symbolic, emotion-

31 Cultural Heritage & Arts Review, Summer 2011

Beyond Protection (cont’d) al, religious, and historical qualities of the items of cultural her- interested in the conservation of the architectural heritage of itage that are treasured by individuals and peoples. In practical Europe. Europa Nostra, What We Do, http://www.europanostra. terms, this means that cooperative efforts call for restitution of org/what-we-do/ (last visited July 8, 2011). 27. As revealed by testimony in the Goldberg case, Dikman was art objects when (i) they were removed illegitimately, i.e., taken the “mastermind” of the depredation of Cypriot heritage. He by force or theft; (ii) there is a “cultural context” to which they combed the occupied part of island to collect materials “upon can return; and (iii) the country to which the items are to be orders from people from Holland, the United States, Greece, and returned has the capacity to house, protect, and display them. other countries”. After his arrest in 1997 in Germany, police found in apartments rented by him frescoes, mosaics, and icons estimated to be worth more than $40 million. M. Rose, From Cyprus to Munich, ARCHAEOLOGY, Apr. 20, 1998. 28. May 14, 1954, 249 U.N.T.S. 215 (hereinafter “1954 Conven- 1. U.S. Agency for International Development, Cyprus, http://www. tion”). usaid.gov/locations/europe_eurasia/countries/cy/ (last visited July 29. Nov. 17, 1970, 823 U.N.T.S. 231 (hereinafter “1970 Conven- 8, 2011). tion”). 2. U.S. Dep’t of State Bureau of European & Eurasian Affairs, Back- 30. “The export and transfer of ownership of cultural property under ground Note: Cyprus, http://www.state.gov/r/pa/ei/bgn/5376. compulsion arising directly or indirectly from the occupation of htm (last visited July 8, 2011). a country by a foreign power shall be regarded as illicit.” 1970 3. Id. Convention, art. 11. 4. Id. 31. Protocol to the Convention for the Protection of Cultural Prop- 5. B. O’Malley, Victims and Villains: The Infl uence of Foreign Military erty in the Event of Armed Confl ict 1954, May 14, 1954, 249 Interests and Ethnic Fighting on the Division of Cyprus, in CYPRUS U.N.T.S. 358. & EUROPE. THE LONG WAY BACK, (V. K. Fouskas & H. A. 32. Second Protocol to the Hague Convention for the Protection of Righter, eds. 2003). Cultural Property in the Event of Armed Confl ict, Mar. 26, 1999, 6. Id. 38 I.L.M. (1999) 769. 7. Id. 33. Von Schorlemer, Cultural Heritage Law: Recent Developments in 8. Id. the Laws of War and Occupation in CULTURAL HERITAGE ISSUES: 9. Id. THE LEGACY OF CONQUEST, COLONIZATION, AND COMMERCE 137- 10. Id. 58 (J. A. R. Nafziger & A. M. Nicgorski, eds. 2009). 11. U.S. Agency for International Development, Cyprus, http://www. 34. Instructions for the Government of Armies in the Field as Author- usaid.gov/locations/europe_eurasia/countries/cy/ (last visited July ized by the Laws and Usages of War on Land, General Orders 8, 2011). No.100 of Apr. 24, 1863, arts. 34-36. 12. The troops are known as the United Nations Peacekeeping Force 35. International Declaration Concerning the Laws and Customs of in Cyprus (UNFICYP) and act under the authority of United Na- War, Aug. 27, 1874 (not ratifi ed), AJIL (supp.), 1907, p. 96. tions Security Council Resolution No 186 (1964). 36. Laws and Customs of War on Land of the Institute of International 13. O’Malley, supra note 5. Law, reproduced in THE LAWS OF ARMED CONFLICTS. A COLLEC- 14. Id. TION OF CONVENTIONS, RESOLUTIONS AND OTHER DOCUMENTS 36 15. Id. (Schindler & Toman, eds. 1988). 16. U.S. Agency for International Development, Cyprus, http://www. 37. Hague Convention (II) with respect to the Laws and Customs of usaid.gov/locations/europe_eurasia/countries/cy/ (last visited July War on Land, July 29, 1899, AJIL, 1907, 66; and Hague Con- 8, 2011). vention (IV) respecting the Laws and Customs of War on Land, 17. Giovanni Ricciardi, A Heritage to Save, 02-2007 30DAYS, (2007), Oct. 18, 1907, AJIL, 1908, 165. http://www.30giorni.it/articoli_id_13541_l3.htm. 38. Treaty on the Protection of Artistic and Scientifi c Institutions 18. Id. and Historic Monuments, (Roerich Pact), Apr. 15, 1935, 167 19. Id. L.N.T.S. 279. 20. Id. 39. Article 56 of the Regulations provides that “[D]estruction or will- 21. Id. ful damage done to institutions of this character, historic monu- 22. OJ EU C 305 E/92, Dec. 14, 2006, available at http://eur-lex. ments, works of art and science, is forbidden, and should be made europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2006:305E:0092 the subject of legal proceedings.” Article 23(g) establishes that, :0093:EN:PDF. during hostilities, monuments and buildings dedicated to art and 23. Id. science ought not to be attacked or bombarded, unless necessary 24. States Parties are states that have ratifi ed and adhere to a treaty or for military reasons. Moreover, Article 27 indicates that during convention. war, all necessary steps must be taken to spare, as far as possible, 25. Autocephalous Greek Orthodox Church of Cyprus v. Goldberg, buildings dedicated to religion, art, science, or charitable pur- 717 F. Supp., 1374, (S.D. Ind. 1989), aff’d, 917 F.2d 278 (7th poses, and historic monuments. Cir. 1990). 40. Treaty on the Protection of Artistic and Scientifi c Institutions and 26. Europa Nostra is a European non-governmental organization Historic Monuments (Roerich Pact), art. 1, Apr. 15, 1935, 167

32 Cultural Heritage & Arts Review, Summer 2011

L.N.T.S. 289. regions/eur/holocaust/heacappen.pdf. 41. See, e.g., Treaty of Versailles between the Allied Powers and 67. Id. at 972. Germany (1919) and Treaty of Saint-Germain between the Allied 68. E. Jayme, Human Rights and Restitution of Nazi-Confi scated Powers and Austria (1919). Artworks from Public Museums: The Altmann Case as a Model for 42. Declaration of the Allied Nations against Acts of Dispossession Uniform Rules?, 2 KUNSTRECHTSPIEGEL 47-51 (2007). Committed in Territories under Enemy Occupation or Control, 69. Parliamentary Assembly of the Council of Europe, Resolution Jan. 5, 1943 (8 Dep’t of State Bulletin 21) (signed by seventeen 1205, Looted Jewish Cultural Property (1999), available at http:// governments and by the Comité National Français). assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta99/ 43. To date, 123 states are parties to the 1954 Hague Convention, ERES1205.htm. 100 states to the First Protocol, and 56 states to the Second 70. Lootedart.com, Vilnius International Forum on Holocaust-Era Protocol. For the current list, see http://portal.unesco.org/en/ Looted Cultural Assets, 3-5 October, 2000, http://www.lootedart. ev.php-URL_ID=12025&URL_DO=DO_TOPIC&URL_SEC- com/MG8D3S66604 (last visited July 8, 2011). TION=-471.html (last visited July 8, 2011). 71. U.S. State Dep’t, Prague Holocaust Era Assets Conference: 44. 1954 Convention, preamble. Terezin Declaration, available at http://www.state.gov/p/eur/rls/ 45. 1954 Convention , art. 1(a). or/126162.htm (last visited July 8, 2011). 46. 1954 Convention, arts. 4, 5. 72. 267 N.Y.S.2d 804 (N.Y. County Super. Ct. 1966). 47. 1954 Convention, art. 4(3). 73. Id. at 811. 48. 1954 Convention , art. 5. 74. See Menzel v. List, 267 N.Y.S.2d 804, 809-12 (N.Y. County 49. 1954 Protocol, art. I(1)-(4). Nevertheless, it has been argued that Super. Ct. 1966). the obligation to return illicitly taken cultural objects is customary 75. Altmann v. Republic of Austria, 142 F. Supp. 2d 1187 (C.D. because it is inherent in the obligation to respect cultural prop- Cal.1999), aff’d, 317 F.3d 954 (9th Cir. 2002), as amended, 327 erty and in the prohibition on seizing and pillaging of cultural F.3d 1246 (9th Cir. 2003), 541 U.S. 677 (2004). The Altmann property. Clearly, if cultural objects should not be seized, then, a case was used as precedent in Malewicz v. City of Amsterdam, fortiori, they should be returned in case they have been wrong- 517 F. Supp. 2d 322 (D.D.C. 2007) and in Cassirer v. the fully exported. 1 CUSTOMARY INTERNATIONAL HUMANITARIAN LAW Kingdom of Spain, 461 F. Supp. 2d 1157 (C.D. Cal. 2006). 137 (Henckaerts & Doswald-Beck, eds. 2005). Despite the U.S. Supreme Court decision, the proceedings 50. Updated Statute of the International Criminal Tribunal for the before U.S. courts did not continue as Maria Altmann and the Former Yugoslavia, art. 3(d), July 7, 2009, available at http:// Austrian counterparts entered into arbitration in 2005, which www.icty.org/x/fi le/Legal%20Library/Statute/statute_sept09_ resulted in a judgment requiring Austria to return the paint- en.pdf. ings to the claimant. U.S. courts have ordered the restitution of 51. Rome Statute of the International Criminal Court, As Corrected, looted works of art in other Holocaust-related disputes. See, e.g., arts. 8(2)(b)(ix) & 8(2)(e)(iv), Jan. 16, 2002, available at http:// Vineberg v. Bissonnette, 529 F. Supp. 2d 300, 301 (D.R.I. 2007); untreaty.un.org/cod/icc/statute/romefra.htm . Kunstsammlungen zu Weimar v. Elicofon, 478 F.2d 231 (2d Cir. 52. The Extraordinary Chambers are a hybrid criminal court 1973); Kunstsammlungen zu Weimar v. Elicofon, 536 F. Supp. established by the Cambodian government and the UN to try 829 (E.D.N.Y. 1981), aff’d, 678 F.2d 1150 (2d Cir. 1982). members of the Khmer Rouge for crimes against humanity which 76. Halil Shahin Kandu v.Ministry of Defence et al., HCJ 270/87, took place between 1975 and 1979. The ECCC are a part of the 43(1) PD 738, 742. Cambodian court system, and apply both international law and 77. Hess et al. v. IDF Commander of the West Bank et al., HCJ the Cambodian penal law in force during the relevant period. 10356/02, 58(3) PD 443, 464. 53. See Charter of the International Military Tribunal, art. 6(b), Aug. 78. Shahrur v. Military Commander of Judea & Samaria et al., HCJ 8, 1945, available at http://avalon.law.yale.edu/imt/imtconst.asp. 560/88, 44(2) PD 233, 234. 54. See J.A.R. Nafziger, The Present State of Research Carried Out by 79. Associazione nazionale Italia Nostra Onlus c. Ministero per i beni e le the English-speaking Section of the Centre for Studies and Research, attività culturali et al., Consiglio di Stato, No.3154, June 23, 2008. in HAGUE ACADEMY OF INT’L LAW, THE CULTURAL HERITAGE OF 80. Certain Property (Liechtenstein v. Germany), Preliminary Objec- MANKIND, 228 (2007). tions, ICJ Reports, 2005, p. 4. The ICJ dismissed the action 55. 1999 Protocol, art. 22. for lack of jurisdiction ratione temporis because the 1957 Euro- 56. 1999 Protocol, art. 6. pean Convention for the Peaceful Settlement of Disputes (ETS, 57. 1999 Protocol, arts. 10-14. No.23), upon which Liechtenstein based the Court’s jurisdiction, 58. 1999 Protocol, arts. 15-21. entered into force between the two states only in 1980, that is, 59. 1999 Protocol, art. 24. long after the time when the cause of action accrued. 60. 1999 Protocol, art. 9. 81. Temple of Preah Vihear (Cambodia v. Thailand), Merits, ICJ 61. 1999 Protocol, art. 21. Reports, 1962, p. 6, 34. 62. Resolution 686 (UN Doc S/RES/686, Mar. 2 1991, 30 I.L.M. 82. Case Concerning the Application of the Convention on the Prevention 568) imposed to “return all Kuwait property seized by Iraq.” and Punishment of the Crime of Genocide (Bosnia and Herzegovina 63. UN Doc S/RES/1483, May 22, 2003, 43 I.L.M. 1016. v. Serbia & Montenegro), Feb. 26 2007, ¶¶ 194 & 344. 64. Id. at ¶ 7. 83. Beyeler v. Italy, Application No. 33202/1996, Jan. 5, 2000. 65. J.P. Fishman, Locating the International Interest in Intranational 84. See, e.g., Loizidou v. Turkey, Application No. 1518/89, Dec. 18, Cultural Property Disputes, 35 YALE J. INT’L L., 347-404 (2010). 1996, whereby the ECtHR found Turkey (and not the TRNC) 66. U.S. State Dep’t, Washington Conference Principles on Nazi-Con- guilty of obstructing Titania Loizidou from returning her prop- fi scated Art, in Washington Conference on Holocaust-Era Assets erty in north Cyprus. Proceedings 971 (1998), available at http://www.state.gov/www/ 85. See also Prince Hans-Adam II of Liechtenstein v. Germany (Ap-

33 Cultural Heritage & Arts Review, Summer 2011

Beyond Protection (cont’d)

plication No. 42527/98, July 21, 2001); Kozaciolu v. Turkey self-executing, that is, that they were unqualifi ed to grant rights (Application No. 2334/03, Feb. 19, 2009, ¶ 67). and obligations to non-state actors, such as natural and legal 86. Prosecutor v. Strugar, IT-01-42-PT, Jan. 31, 2005, ¶¶. 232, 279, persons. Accordingly, the court determined that it was unable to 285, 302. order the defendant to return the icons. 87. World Heritage Convention, Old City of Dubrovnik, http://whc. 97. K. Pomian, Speech, Feb. 5, 2007, in WITNESSES TO HISTORY. A unesco.org/en/list/95 (last visited July 8, 2011); see also Prosecutor COMPENDIUM OF DOCUMENTS AND WRITINGS ON THE RETURN OF v. Joki, IT-01-42/1-S, Judgment, Mar. 18, 2004, ¶ 53. CULTURAL OBJECTS 48-49 (L. Prott, ed. 2009). 88. See, e.g., Prosecutor v. Kordic & Cerkez, IT-95-14/2-T, Feb. 26, 98. D. Shapiro, Repatriation: A Modest Proposal, 31 N.Y.U. INT’L J. L. 2001. & POLITICS 95-98 (1998). 89. See, e.g., id. at ¶ 206) and Prosecutor v.Tadi (IT-94-1-I, Decision 99. Article 4(4) of the Convention on Stolen or Illegally Exported of on Defense Motion for Interlocutory Appeal on Jurisdiction, Oct. Cultural Objects of the International Institute for the Unifi cation 2, 1995, ¶ 98). of Private Law (UNIDROIT) of June 24, 1995 (I.L.M., 1995, 90. Partial Award, Central Front, Eritrea’s Claims 2, 4, 6, 7, 8, & 22 1322) constitutes a useful codifi cation of an international stand- between the State of Eritrea and the Federal Democratic Repub- ard of diligence: “In determining whether the possessor exercised lic of Ethiopia, Apr. 28, 2004, I.L.M., 2004, 1270, ¶¶ 112-13. due diligence, regard shall be had to all the circumstances of the The EECC was established as an arbitral tribunal with the Peace acquisition, including the character of the parties, the price paid, Agreement signed in Algiers in 2000 with the task of resolving whether the possessor consulted any reasonably accessible register question of state responsibility for violations of international law. of stolen cultural objects, and any other relevant information 91. With regard to the two latter principles, see F. Francioni, Au-delà and documentation which it could reasonably have obtained, des Traités: L’émergence d’un Nouveau Droit Coutumier pour la and whether the possessor consulted accessible agencies or took Protection du Patrimoine Culturel, in REVUE GÉNÉRALE DE DROIT any other step that a reasonable person would have taken in the INTERNATIONAL PUBLIC 19-41 (2007); T. Scovazzi, Diviser C’est circumstances.” Détruire: Ethical Principles and Legal Rules in the Field of Return 100. In spite of the referendum’s result, the European Union accepted of Cultural Properties (Sept. 2010), p. 14 (paper presented at the the entry of Cyprus as a State including the north of the island. 16th session of the Intergovernmental Committee for Promoting 101. O’Malley, supra note 5, at 51. the Return of Cultural Property to its Countries of Origin or its 102. Plea for the Return of an Irreplaceable Cultural Heritage to Those Restitution in case of Illicit Appropriation, Paris); W. SANDHOLTZ, Who Created It, MUSEUM 58 (1979). PROHIBITING PLUNDER. HOW NORMS CHANGE 9, 223, 256-57 103. S. Balderstone, Cultural Heritage and Human Rights in Divided (2007); M. FRIGO, LA CIRCOLAZIONE INTERNAZIONALE DEI BENI Cyprus, in CULTURAL DIVERSITY, HERITAGE & HUMAN RIGHTS CULTURALI 84 (2001); K. SIEHR, 243 INTERNATIONAL ART TRADE 226-42 (M. Langfi eld et al., eds. 2010). AND THE LAW 120 (1993); contra, G. CARDUCCI, LA RESTITUTION 104. See Europa Nostra, Heritage Awards, http://www.europanostra. INTERNATIONALE DES BIENS CULTURELS ET DES OBJETS D’ART 123- org/heritage-awards/ (last visited July 8, 2011). 24 (1997). 105. Balderstone, supra note 103, at 239. 92. See SANDHOLTZ, supra note 91 at 256-57 (citing the works by 106. Global Heritage Fund, Saving Our Vanishing Heritage, http:// Colwell-Chanthaphonh & Piper, Kastenberg, Birov, Roberts & www.globalheritagefund.org/vanishing (last visited July 8, 2011). Guelff, & Meyer). 107. The meeting of the parties was held in Paris, under the auspices of 93. Cyprus and Turkey accessed to the 1954 Convention on Sept. 9, the United Nations, at the Representation of the European Com- 1964 and Dec. 15, 1965, respectively. Moreover, it appears from mission in France, on April 4, 2008. See Press Release, Europa the UNESCO Database of National Cultural Heritage Laws that Nostra, available at http://www.europanostra.org/OS/lang_en/ neither Cyprus nor Turkey have adopted domestic measures to index.html. implement the Convention. 108. Ricciardi, supra note 17. 94. SANDHOLTZ, supra note 91 at 258-59. Given the customary value 109. A. Muezzinler, Appeal from Greek Orthodox Church against Turkey of the rule under consideration, it is immaterial that the United in ECHR, J. TURKISH WEEKLY, Nov. 25, 2009. States was not a party to the 1954 Convention in 2003. The 110. See U.S. Dep’t of State Bureau of Educational & Cultural Affairs, Convention was ratifi ed only on Mar. 13, 2009. Import Restrictions List & Chart: Cyprus, http://exchanges.state. 95. M. E. O’Connell, Occupation Failures and the Legality of Armed gov/heritage/culprop/cyfact.html? (last visited July 8, 2011). Confl ict: The Case of Iraqi Cultural Property, in 4 ART ANTIQUITY 111. Ricciardi, supra note 17. & LAW 323-62. 112. K. Odendahl & M. Peters, The Signifi cance of Cultural Heritage 96. The case, Autocephalous Greek Orthodox Church in Cyprus v. Wil- for State Stability and Its Protection by Public International Law, in lem Lans, is illustrative (District Court, Rb Rotterdam, Feb. 4, FACETS AND PRACTICES OF STATE-BUILDING 263-79 (J. Raue & P. 1999, NJkort 1999/37, conf’d on appeal, Hof Den Haag, Mar. Sutter, eds. 2009). 7, 2002, 99/693 (unpublished)). The church brought an action 113. A. JAKUBOWSKI, HUMAN AND CULTURAL HERITAGE ASPECTS OF in a Dutch court against the possessor of four icons that had STATE SUCCESSION: THE BALKAN LESSON (forthcoming). been looted from the Antiphonitis church, which is situated in 114. J. GALTUNG, TRANSCEND AND TRANSFORM 180-88 (2004). the northern part of Cyprus. At the time that the suit was fi led, 115. Message from Ohrid (“Ohrid Declaration”), adopted by the the Netherlands was a party to the 1954 Convention and its First Regional Forum on the Dialogue among Civilisations, August Protocol. Yet, the Dutch court did not apply the norms of the 2003. 1954 Protocol on restitution because it found that they were not

34 Cultural Heritage & Arts Review, Summer 2011

Book Review: Protecting Cultural Property in Armed Confl ict (An Insight into the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Confl ict), edited by Nout van Woudenberg and Liesbeth Lijnzaad, International Humanitarian

Law Series, Volume 29, Martinus Nijhoff Publishers; Leiden, Boston; 2010, 245 p.

Reviewed by Jan Hladík The relatively limited number of schol- tocol, namely, military necessity (Chap- leading to the elaboration and adoption arly publications on the Second Proto- ter 3), enhanced protection (Chapters 4 of the Second Protocol), Chapter 2 (the col to the Hague Convention1 has been and 5), protection of cultural property main features of the Second Protocol), supplemented with the addition of Pro- in non-international armed confl icts Chapters 4 and 5 (enhanced protec- tecting Cultural Property in Armed Con- (Chapter 8) and military aspects of the tion under the Second Protocol), Chap- fl ict (An Insight into the 1999 Second Pro- protection of cultural property (Chap- ter 8 (protection of cultural property tocol to the Hague Convention of 1954 for ters 9 and 11); (iv) the penal aspects in non-international armed confl icts) the Protection of Cultural Property in the of the protection of cultural property and Chapter 14 (the 1954 Protocol). Event of Armed Confl ict), edited by Nout (Chapters 6 and 7); (v) two cases of van Woudenberg and Liesbeth Lijnzaad, national implementation of the Second Written by Professor Jií Toman, a UN- and published in 2010 by Martinus Ni- Protocol concerning the Netherlands ESCO consultant and author of the au- jhoff Publishers as Volume 29 of the and the former Yugoslav Republic of thoritative commentaries on the Hague International Humanitarian Law Series. Macedonia (Chapters 10 and 12); (vi) Convention3 and the Second Protocol,4 the state of the protection of cultural Chapter 1 discusses the development of To a large degree, this publication re- property in Iraq (Chapter 13); and (vii) international humanitarian law since fl ects the proceedings of the sympo- the 1954 (First) Protocol to the Hague the adoption of the Hague Convention, sium held on the tenth anniversary of Convention (Chapter 14). In addition, up to and through the contribution of the adoption of the Second Protocol, the publication’s seven annexes contain, the Second Protocol to the protection of March 26, 2009, at the Peace Palace inter alia, the June 2003 Netherlands cultural property in the event of armed at The Hague, which was organized by International Crimes Acts, the March confl ict. The chapter begins with con- the Netherlands Ministry of Foreign 2007 Netherlands Cultural Property crete examples of confl icts addressed Affairs in joint cooperation with the Originating from Occupied Territory during the initial period of implementa- Netherlands Ministry of Defence and (Return) Act, and excerpts from the tion of the Hague Convention (e.g., the Ministry of Education, Culture, and ICTY case Prosecutor v. Pavle Strugar. Science.2 In short, the publication pre- Jan Hladík is Acting Chief, Cultural sents (i) a summary of the evaluation While each chapter of the book is im- Heritage Protection Treaties Section, of the implementation of the Hague portant for providing insight to the dif- Division for Cultural Expressions and Convention and the reasons for elabo- ferent aspects of the implementation Heritage, UNESCO. The author is re- rating the Second Protocol (Chapter 1); of the Hague Convention, the 1954 sponsible for the choice and presentation (ii) an assessment of the main features (First) Protocol and, most prominently, of the facts contained in this article and of the Second Protocol (Chapter 2); the 1999 (Second) Protocol, I particu- for the opinions expressed therein, which (iii) analyses of specifi c features of the larly recommend a few specifi c chap- are not necessarily those of UNESCO Hague Convention and the Second Pro- ters: Chapter 1 (summary of reasons and do not commit the Organization.

35 Cultural Heritage & Arts Review, Summer 2011

Book Review: (cont’d)

Middle East confl ict, Cambodia) and goes through the Iran- Iraq, the Yugoslav, the Afghan and the two Gulf confl icts.

Chapter 2, written by Jean-Marie Henckaerts, Legal Advisor in the Legal Division of the International Committee of the Red Cross, analyzes the main features of the Second Protocol. The chapter focuses on provisions related to the respect for cultur- al property and, in particular, clarifi cation on the following issues: military necessity, precautions in attack and against the effects of hostilities, enhanced protection, individual criminal responsibility (including both the provision of jurisdiction for and criminalization of violative acts), and the scope of ap- plication of the Second Protocol. The chapter concludes by describing the main achievements of the Second Protocol (p. 41). I would note one more achievement: the contribution of the Second Protocol to the interpretation of the Hague Con- vention (e.g., the chapeau of Article 6 of the Second Protocol).

Chapters 4 and 5 deal with “enhanced protection,” a funda- mentally new category of protection provided for by Chapter 3 of the Second Protocol. Each of Chapters 4 and 5 tackles the problem of enhanced protection from a different angle. Chapter 4, written by Nout van Woudenberg, Legal Counsel at the International Law Division of the Netherlands Minis- try of Foreign Affairs, analyzes weaknesses in the system of special protection under the Hague Convention, main com- ponents of enhanced protection (i.e., the three essential con- ditions of Article 10 of the Second Protocol,5 the granting of enhanced protection by the Committee for the Protection of Cultural Property in the Event of Armed Confl ict and the loss, suspension, or cancellation of enhanced protection), and the reasons for elaborating on the new concept of enhanced protection. Chapter 5, written by Ariel W. Gonzales, Coun- sellor of the Permanent Mission of Argentina to the United Image courtesy of Martinus Nijhoff Publishers, used with permission. Nations in Vienna, focuses on the analysis of Article 10(a) of the Second Protocol, the relationship between the Second Chapter 8 on the protection of cultural property in non-inter- Protocol and the 1972 Convention and the progressive inter- national armed confl icts, written by Jean-Marie Henckaerts, pretation of Article 10(a) in other fora. Finally, the chapter deals with the extension of the application of the rules pro- provides some interesting proposals concerning the link be- tecting cultural property to non-international armed confl icts tween the Second Protocol and the 1972 Convention, such both under the Hague Convention and the Second Protocol, as “the limitations on introducing amendments to either the provides reference to the Convention on Certain Conventional 1972 World Heritage Convention or the Second Protocol,” Weapons and the Statute of the International Criminal Court, “the problem of ‘natural and mixed heritage,’ which is includ- and concludes by analyzing the enforcement of the rules appli- ed on the World Heritage List but is in principle alien to the cable to cultural property in non-international armed confl icts. Second Protocol,” and “the status under the Second Protocol of a World Heritage Property that has been removed from Chapter 14, written by Liesbeth Lijnzaad, Legal Adviser and the World Heritage List and thus ceased to be ‘of the high- est importance to the international community as a whole.’”6 Head of the International Law Division at the Netherlands

36 Cultural Heritage & Arts Review, Summer 2011

1. E.g., JIÍ TOMAN, CULTURAL PROPERTY IN WAR: IMPROVE- Nout van Woudenberg is legal counsel at the In- MENT IN PROTECTION (COMMENTARY ON THE 1999 ternational Law Division, Ministry of Foreign Af- SECOND PROTOCOL TO THE HAGUE CONVENTION OF 1954 fairs of the Kingdom of the Netherlands, where he FOR THE PROTECTION OF CULTURAL PROPERTY IN THE has worked since 1998. Within the Division, he EVENT OF ARMED CONFLICT) (2009); ROGER O’KEEFE, is amongst others responsible for the international THE PROTECTION OF CULTURAL PROPERTY IN ARMED CONFLICT (2006); KEVIN CHAMBERLAIN, WAR AND legal aspects of cultural property and its protection. CULTURE HERITAGE (AN ANALYSIS OF THE 1954 HAGUE Since 2007, the Netherlands is one of the members CONVENTION FOR THE PROTECTION OF CULTURAL PROP- of the Committee for the Protection of Cultural Prop- ERTY IN THE EVENT OF ARMED CONFLICT AND ITS TWO erty in the Event of Armed Confl ict under the 1999 PROTOCOLS) (2004). Second Protocol; Van Woudenberg currently acts as 2. PROTECTING CULTURAL PROPERTY IN ARMED CONFLICT vice-Chairman of this Committee. (AN INSIGHT INTO THE 1999 SECOND PROTOCOL TO THE HAGUE CONVENTION OF 1954 FOR THE PROTECTION OF CULTURAL PROPERTY IN THE EVENT OF ARMED CONFLICT) Liesbeth Lijnzaad is the Legal Adviser, Head of the xi (Nout van Woudenberg & Liesbeth Lijnzaad eds., International Law Division, Ministry of Foreign Af- 2010). fairs of the Kingdom of the Netherlands, where she 3. JIÍ TOMAN, THE PROTECTION OF CULTURAL PROPERTY IN has worked since 1994. She participated in the Dip- THE EVENT OF ARMED CONFLICT (COMMENTARY ON THE lomatic Conference of March 1999, where the 1999 CONVENTION FOR THE PROTECTION OF CULTURAL PROP- Second Protocol was adopted. She is an expert on ERTY IN THE EVENT OF ARMED CONFLICT AND ITS PROTO- COL, SIGNED ON 14 MAY IN THE HAGUE, AND ON OTHER international humanitarian law. INSTRUMENTS OF INTERNATIONAL LAW CONCERNING SUCH Ministry of Foreign Affairs, provides a valuable analysis of PROTECTION) (1996). the 1954 (First) Protocol. In particular, it focuses on the 4. See TOMAN, supra note 2. trilateral relationship (i.e., the relationship between the oc- 5. The text of Article 10, “Enhanced Protection,” is as cupying power, the occupied state, and the third State) that follows: may arise when applying the 1954 Protocol,7 deals with Cultural property may be placed under enhanced the protection of the new owner, analyzes the national im- protection provided that it meets the following plementation of the 1954 Protocol in the Netherlands, and three conditions: provides an overview of diffi culties in the implementation of this instrument.8 When reading this chapter, the read- (a) it is cultural heritage of the greatest importance er may wish to subsequently read the March 2007 Nether- for humanity; lands Cultural Property Originating from Occupied Ter- ritory (Return) Act (included in annex of the publication), (b) it is protected by adequate domestic legal and which implements the 1954 Protocol in the Netherlands. administrative measures recognising its exceptional cultural and historic value and ensuring the highest To conclude, the publication Protecting Cultural Property level of protection; in Armed Confl ict (An Insight into the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cul- (c) it is not used for military purposes or to shield tural Property in the Event of Armed Confl ict) is an impor- military sites and a declaration has been made by tant reference for any lawyer specializing in international the Party which has control over the cultural prop legal protection of cultural property in peacetime or war- erty, confi rming that it will not be so used. time. It is my hope that this work will contribute to bet- ter implementation of the Second Protocol, encourage those Second Protocol to The Hague Convention of 1954 States which are not yet party to this instrument to become for the Protection of Cultural Property in the Event of Parties, and stimulate interest in the Second Protocol, the Armed Confl ict, art. 10, Mar. 26, 1999, 2253 U.N.T.S. Hague Convention, and the 1954 (First) Protocol in general. 172. 6. See pp. 66–67 of the publication. 7. See pp. 150 & 151 of the publication. 8. See pp. 154, 155, & 156 of the publication.

37 Cultural Heritage & Arts Review, Summer 2011

Arts & Antiquities: Traffi cking News Notes By CHAR Staff Editors & Melissa A. Arnold, Thomas J. Dall, & Douglas Williams

November 2010

against Yale University for Van Gogh’s The Night Café, • Eleven sculptures by artists condemned as “degenerate” please see Allan Gerson’s article by the Nazis were discovered during the excavations be- Accounting for Bolshevik , in this issue.) fore the construction of a new underground line in Ber- Looted Art: Moral and Legal Imperatives • The Supreme Court of the United States has been lin, Germany. The unearthed sculptures include works asked to review a ruling that allowed a lawsuit to pro- from Edwin Scharff, Marg Moll, and Karl Knappe. ceed against the Republic of Spain and the Thyssen- • The Netherlands returned an oil painting by Bornemisza Collection over art alleged to have been Jan Brueghel the Younger to the heirs of a Jew- looted by the Nazi regime. Spain contends that the suit ish art dealer persecuted by the Nazis and forced should not proceed because the U.S. statute that allows to fl ee Germany more than seventy years ago. foreign governments to be sued over wrongful prop- • A new online database created by the Conference of Jewish erty takings does not apply in cases where the allegedly Material Claims against Germany and the U.S. Holocaust stolen property was taken by a foreign sovereign itself. Memorial Museum seeks to reunite lost artworks with the • Federal authorities seized two Julian Falat paint- families of their owners. The database relies on the recently ings, which were stolen by Nazis during the Sec- digitized spoliation records meticulously kept by the Nazis. ond World War, from New York auction houses. • A commission of Austria’s Ministry of Culture decided • The Czech Republic’s Constitutional Court overturned that the Leopold Museum should return seven Nazi-loot- decisions from lower courts that had awarded half own- ed paintings by Egon Schiele and Anton Romako to their ership of twenty valuable paintings to the descend- rightful owners. However, the decision is non-binding. ants of a Jewish owner of a button factory that was • Polish state lawyers have begun working to get one of seized by the Nazis in 1939 and nationalized in 1945. the masterpieces of Aleksander Gierymski back into the • Britain’s Spoliation Advisory Panel ruled that a paint- country. The painting, Jewish Woman with Oranges, had ing of the Virgin Mary by Peter Paul Rubens will been stolen by the Nazis during the Second World War remain with its current owner, the Courtauld In- and turned up at a small auction house in Hamburg. stitute in London. The Spoliation Advisory Panel heard arguments from the descendents of a Jewish December 2010 banker who sold the painting in 1930 when he was forced to fl ee Germany during the Nazi rise to power. • A WikiLeaks cable revealed that the U.S. ambassador to • The United States has entered into a settlement agree- Spain, Eduardo Aguirre, attempted to use recovered sunk- ment with the Toledo Museum of Art that provides en treasure as a bargaining chip in a dispute involving the for the return of the Nereid Sweetmeat Stand, a famed return of artwork stolen by the Nazis. The ambassador of- Swan Service collection’s centerpiece to a royal family fered to return over $300 million in recovered gold coins in Germany. The centerpiece, valued at over $1 mil- from a Spanish shipwreck in exchange for Spain’s help lion dollars, was stolen during the Second World War. in getting the stolen artwork back to its rightful owners. • Sotheby’s Art Auction House scrapped a February • Pierre Konowaloff fi led suit in federal court in Man- sale of a controversial ivory mask believed to have be- hattan alleging that a Cezanne painting in the perma- longed to an ancient Nigerian King. The mask may nent collection on the Metropolitan Museum of Art have been looted by British forces from 19th-cen- was stolen from his great-grandfather in 1918 follow- tury West Africa. Online protests against the sale ing the Bolshevik takeover of Russia. (For more in- emerged on social networking sites in mid-December. formation about this case and Mr. Konowaloff’s claim

38 Cultural Heritage & Arts Review, Summer 2011

January 2011 • The painting The Girl with a Dove by Polish art- ist Antoine Pesne, which had been stolen during the Second World War, was discovered in Moscow. • Reports of widespread looting of antiquities fi ltered • In what is regarded by many as the last unresolved in from Egypt during the country’s revolutionary Holocaust-related claim of its magnitude – the claim unrest, most notably in Abusir and Saqqara. Loot- by the heirs of the Herzog family against Hungary for ers allegedly entered tombs that had been sealed, over 40 works with a combined value of over $100 destroyed them, and took artifacts. The Egyptian million – Hungary argued for dismissal of the case be- Museum in Cairo also experienced looting, where cause compensation for the works was covered by a at least two Pharaonic mummies were destroyed. 1973 agreement between itself and the United States. • Italian police arrested a man with an eight-foot-tall • The United States Court of Appeals for the Sixth Cir- ancient statue not far from Rome. Police believe cuit dismissed Holocaust-era theft claims against the the statue may be of Caligula and may have come German government because of lack of jurisdiction. from his tomb, which has eluded discovery to date. • Philippa Calnan, the purported sole heir to • British pop singer Boy George returned a precious paint- St. Catherine by Bernardo Strozzi, was denied an export ing to its rightful home, in a church on the other side of Alexandria license by Italian courts to bring the painting back to the of Europe. A church Bishop saw the battered painting United States. The courts held that the period for apply- hanging from the wall of the singer’s home while watch- ing for an export license had expired in 2004, at which ing a documentary about the singer on Dutch television. time the whereabouts of the painting were still unknown. • Rutgers University returned a Renaissance-era paint- Calnan plans to appeal her case to Italy’s highest court. ing to its rightful owners after learning that the • The German Government has agreed to amend painting had been looted by the Nazis in Holland. its constitution to enable the free return of Na- • A 900-year-old religious manuscript that had been looted zi-looted art. The provision will affect all claims in Italy during the Second World War was returned by brought to German state collections and should the British Library to its rightful owners in the southern lead to rapid resolutions of successful claims. Italian town of Benevento after a decade-long legal battle. • Artworks worth tens of millions of pounds and reg- istered as “disappeared” or “stolen” have been seized February 2011 from the Wildenstein Institute in Paris. Among the items seized are works by Degas and Manet. • The heirs of Baron Mor Lipot Heerzog fi led a suit in the Unit- ed States seeking the return of works of art from Hungary. March 2011 • In Seattle, an art dealer was sentenced to four years in prison for conspiring to steal art. • Victims of a 1997 bombing in Jerusalem have en- • Works by Monet, Marquet, and Boudin that had countered an obstacle in enforcing their $90 million been stolen in 1999 were recovered in Buenos Aires judgment against Iran. The United States Court of after they were posted on an Interpol database. Appeals for the Seventh Circuit held that the antiqui- • The St. Louis Art Museum took the offensive and ties were presumed to be immune from attachment. sued the federal government in an attempt to preclude • The U.S. Attorney’s offi ce in Delaware returned twenty- it from initiating a forfeiture claim against the Ka- fi ve ancient Iraqi artifacts that were recovered as part of Nefer-Nefer mask, which the museum had acquired a recent investigation into art smuggling. Assistant U.S. in 1998 for a reported $500,000. The museum con- Attorney David L. Hall indicated that the items were re- tends that U.S. offi cials were party to communica- covered from a California antiquities dealer in July 2010. tions in 2005 and 2006 that gave them knowledge of • French investigators found jewels valued at $25 million a potential claim at that time and triggered the run- hidden in a Paris rain sewer. The jewels were part of the ning of the fi ve-year statute of limitations period under spectacular 2008 heist from luxury jeweler Harry Win- 19 U.S.C. § 1621, thus precluding a forfeiture action. ston’s boutique and were found in a drain at a house be- • On February 11, 2011, Yale University signed an agree- longing to one of the nine people charged in the heist. ment with Peru over the disposition of objects removed • An Australian panel rejected a claim relating to Jo- from Machu Picchu nearly a century ago. The agree- hannes Vermeer’s painting, The Art of Painting. ment will avoid continued litigation and will create a The claim was asserted by the heirs of Jaromir Cz- joint center for the study of Inca culture in Cusco, Peru. erin, who sold the painting to Adolf Hitler in 1940.

39 Cultural Heritage & Arts Review, Summer 2011

Arts & Antiquities: Traffi cking News Notes (cont’d)

The panel said that there was no evidence that the ties and paperwork that had been stowed away in sale was forced or that the seller was persecuted. the trunk of a car driven by a Swiss-Italian man. • The Getty Museum is the fi rst museum in North • Antiques owned by Hussein Salem, an escaped Egyp- America to agree to return a painting to the heir tian mogul, were seized by airport customs at Cai- of Jaques Goudstikker, a noted Dutch-Jewish art ro Airport while in route to Jeddah, Saudi Arabia. dealer whose huge collection was dispersed af- • Europe’s most notorious art thief, Stephanie Breitwies- ter he fl ed the 1940 Nazi invasion of Holland. er, was recently arrested again in France. The French • A porcelain sea nymph worth about $1 million art traffi cking squad searched both his and his moth- was returned to the German city of Dresden on er’s homes, fi nding stolen art and $87,000 in cash. March 24, 2011, more than 70 years after it dis- • Federal agents recovered 99 pre-Columbian artifacts on appeared from a box in a castle where it was kept April 27, 2011 during a Department of Homeland Security for safekeeping during the Second World War. investigation. The artifacts have been returned to Panama. • Egypt’s Supreme Council of Antiquities issued a revised list of objects stolen from Cairo’s Egyp- May 2011 tian Museum in January. Fifty-four pieces were stolen, twelve of which were later recovered. • Egypt will receive from the Museum of Ba- • A bronze erotica piece by 1920s sculptor Bruno Zach was sel in Switzerland a stela that is over four thou- stolen from an antiquities dealer in Germantown, PA. sand years old and portrays its owner hunting. The It was recovered about a month later in Lancaster, PA. stela dates back to Egypt’s Old Kingdom period. • The Mexican government has branded a monumen- • At the Palace Museum inside the Forbidden City in Bei- tal Maya statue that sold for almost 3m a fake. In a jing, seven works of 20th century art that were covered widely circulated statement, the Mexican Ministry with jewels and made of gold were stolen by a thief who of Foreign Affairs and its National Institute of An- law enforcement believed gained access by opening a hole thropology and History said that the Classic period in a wall of the museum. The stolen artwork was on (550-950 AD) piece was “manufactured recently.” loan from Liangyicang, a private Hong Kong collection. • National Trust member Geoffrey Harkin was sen- • Romania recovered 232 ancient artifacts that were tenced to nine years in prison after stealing an- stolen from the archaeological site of Sarmisege- tiques from various stately homes that he visited dur- tusa Regia years ago, including two iron shields, ing guided tours. In total, he stole antiques worth a gold bracelet, and gold and silver coins. more than £1.2 million from mansions across the • The U.S. Customs and Border Protection agency and the country. The items have never been recovered. U.S. Immigration and Customs Enforcement agency re- • Yale University fi led suit in U.S. federal district court covered Peruvian artifacts during a Homeland Security to quiet title to Van Gogh’s The Night Café in response investigation in Denver and New York. The antiquities to a claim against the painting by Pierre Konowaloff. were returned to Peru’s embassy in Washington, D.C. Mr. Konowaloff is also involved in litigation with the • In an effort to prevent theft of cultural relics, China’s police Metropolitan Museum of Art over a Cezanne painting. and heritage protection authorities have united together on an eight-month campaign to “tackle the underground April 2011 market and decisively reverse the high-rate of crime.” Vice-minister of public security Zhang Xinfeng stated • Federal prosecutors in Salt Lake City, Utah, have that, as of May 1, 2011, China’s criminal law removed the added additional counts of traffi cking in archaeo- death penalty as a potential punishment for robbing an- logical resources, conspiracy, and theft of trib- cient tombs, which may give rise to more tomb robberies. al and government property against Joseph M. • In New York, fi ve Indonesian hand-carved hu- Smith, Meredith Smith, Reece Laws, and Tad Kreth. man skulls dating from the 18th and 19th centuries • The Swiss Carabinieri recovered Italian antiqui- were discovered during a search by U.S. immigra-

40 Cultural Heritage & Arts Review, Summer 2011

tion and customs offi cials. The skulls, each unique- was the only item stolen. Similar thefts have oc- ly decorated, were considered trophy skulls and date curred elsewhere in Europe where the animal heads back from the headhunting days of the Dayak Tribe, were eventually found with their horns removed. which resided on the Indonesian island of Borneo. • A group of young New Zealanders has been ac- • A man was arrested for possession of a stolen 1,147-pound cused of taking a treasured painting from a Raro- metal ring that he bought from an ad on the online tonga museum after they were allowed in just be- “classifi eds” website Craigslist. The piece had been bro- fore closing time. After the group left the museum, ken off of its concrete base a few days before the theft. offi cials discovered that the painting was missing. • Lothar Senke and Herbert Schulte, the heads of an or- • UNESCO is considering adding eleven Middle Eastern ganization selling fake sculptures that were advertised as sites to its World Heritage List, but it has rejected Palestine’s original works by Alberto Giacometti, were arrested at the proposal to add the Church of the Nativity in Bethlehem Hotel Steigenberger at the Frankfurt Airport in Germa- because only countries recognized by the United Nations ny. The same day, police detectives in Mainz searched a as sovereign states can make nominations to UNESCO. 200-square-meter storage facility rented by Herbert Schulte • Israeli offi cials detained John Lund, a retired university where large stores of forged sculptures were uncovered. lecturer and Mormon tour guide, as he attempted to • Art loans between the United States and Rus- leave the country with ornate oil lamps and 100 bronze sia have been placed on hold due to ownership dis- coins. He had purchased the antiquities from street putes between Russia and an Orthodox Jewish vendors in Bethlehem, which is under Palestinian con- group over holy texts seized by the Soviet Union. trol, and therefore needed to obtain an exit visa in or- • The fourth and fi nal lot of Korean ancient royal books, der to transport the artifacts out of the country legally. looted by the French army in the late 19th century, were • The U.S. Forest Service is investigating the vandal- returned to South Korea. Since April 14th, a total of izing of a popular cave in central Oregon, the Hidden 273 royal books have been delivered in four separate Forest Cave in the Deschutes National Forest. The fl ights from the National Library of France in Paris. damage included extensive spray-painting both out- • A rhinoceros head was stolen by burglars from a mu- side and inside the cave, covering native pictographs. seum in Surrey in the United Kingdom. Julia Tan- • Three human skulls and a 2,000-year-old mummy ner, the museum’s curator, said the burglars had forced from the Paracas culture on Peru’s coast were recovered an entry, setting the alarms off. The rhinoceros head by customs agents at Argentina’s central post offi ce.

We welcome submissions for upcoming issues. Please contact the CHAR editorial board at [email protected] for more information. Submissions should generally be limited to 3000 words and should focus on a topic relating to art or cultural property law. Preference is generally given to articles that address international issues.

Authors are welcome to select a topic of interest and prepare a piece specifi cally for the Review. If you are interested in writ- ing but do not have a topic, the editorial board may be able to assist you in fi nding a topic, as we continually seek articles that fi t within the theme of each issue.

Space is limited in each issue, and it is best to provide as advanced notice as possible to the editorial board if you intend to submit an article for publication consideration. This facilitates planning for upcoming issues and ensures that the editorial board will have adequate time to review and process your article.

We hope you have enjoyed this issue of the Review, and we would like to thank everyone who helps to make this publication possible, especially our sponsors and the dedicated authors, board members, and support volunteers who work diligently to make each issue a success. And we cannot forget to thank you, our readers, for your continued interest and support.

41 2223 Massachusetts Avenue, NW Washington DC 20008 Phone +1 202-939-6000 Fax +1 202-797-7133