EU Holocaust Era Assets Conference and State Department Town Hall Follow-Up

As one of its last acts as EU President, the Czech Republic held a Holocaust Era Assets Conference in Prague from June 26-30, 2009. Attended by 47 country delegations, 148 organizations, and a representative of the Holy See, the conference met, in part, to evaluate progress since the 1998 Washington Conference on Holocaust-Era Assets (http://www.holocausteraassets.eu/).

Secretary Clinton appointed Ambassador Stuart E. Eizenstat to head the distinguished 24-member U.S. Delegation. Clinton also appointed Ambassador J. Christian Kennedy, Head of the State Department’s Office of Holocaust Issues, as Special Envoy for Holocaust Issues (http://www.state.gov/r/pa/prs/ps/2009/06a/125167.htm).

Among the many conference events, five working groups (Holocaust Education, Remembrance and Research, Immovable Property (Private and Communal), Looted Art, Judaica and Jewish Cultural Property, and Special Session - Caring for Victims of Nazism and Their Legacy) presented expert panel presentations.

When all was said and done, 46 country delegations signed the Terezin Declaration, a non-binding commitment to further progress regarding: (1) the welfare of Holocaust survivors, (2) real property restitution or compensation, (3) the identification and protection of Jewish cemeteries and burial sites, (4) the resolution of claims for restitution of Nazi-confiscated and looted art and other cultural property, (5) Judaica and Jewish cultural property protection and claim resolution, (6) improved archival access, (7) education, remembrance, research, and memorial sites, and (8) the formation of the European Shoah Legacy Institute in Terezin (http://www.state.gov/p/eur/rls/or/126162.htm).

As a follow-up to the Prague EU Conference, the State Department held a Town Hall meeting on September 22, 2009. Emerging issues discussed included the creation of alternative mechanisms to fairly resolve Holocaust Era assets claims, including the possible formation of a national commission or panel, with representatives from the various stake holders, as well as scholars and other experts in the field. Such a commission might facilitate provenance and genealogical research as well as the informal analysis and resolution of such disputes, in an effort to avoid prolonged and expensive litigation. A Congressional hearing regarding these and other related matters is tentatively scheduled for October 29, 2009, under the leadership of Representative Robert Wexler, Chair of the Committee on Foreign Affairs, Subcommittee on Europe.

Carla Shapreau
Visiting Scholar, Institute of European Studies
University of California, Berkeley

Announcing Winners of the 2009 Student Writing Competition in Cultural Heritage Preservation Law

The Lawyers’ Committee for Cultural Heritage Preservation (LCCHP) is pleased to announce the winners of its 2009 annual student writing competition, sponsored by Andrews Kurth LLP. The first-place winner is Amelia Sargent of Stanford University Law School for a paper entitled “New Jurisdictional Tools for Displaced Cultural Property in Russia: From ‘Twice Saved’ to ‘Twice Taken.’” The second-place winner is Melanie Greer of DePaul University College of Law for her paper entitled “Deaccessioning: A Necessary Evil?” An honorable mention went to “The Limits of the Law: The Impact of the 1970 UNESCO Convention on the Trade in Illicit Cambodian Antiquities,” by Terressa Davis of the University of Georgia.

Both winning papers will be published in the 2010 Yearbook of Cultural Property Law. The finalist paper, “Complying with NAGPRA’s Pesticide Provision: A Best Practice Guide” by Lydia Grunstra of American University Washington College of Law will also be published in the next issue of the Yearbook.

Due to the generosity of Andrews Kurth’s D.C. office, the first-place winner will receive an award of $1000 and the second-place winner will receive an award of $500. This is the fifth annual LCCHP competition, and it attracted twenty-six entries from nineteen law schools, the largest numbers of entries and law schools represented in any prior competition. We also want to thank this year’s writing competition selection committee, chaired by Sherry Hutt, and including Ricardo St. Hilaire, Lucille Roussin and Gillian Bearns.

For the third year, LCCHP is pleased to partner with Andrews Kurth in offering this competition as a means of expanding the teaching of cultural heritage preservation law in U.S. law schools. LCCHP is a nonprofit organization of lawyers, law students and interested members of the public who have joined together to promote the preservation and protection of cultural heritage resources in the United States and internationally through education and advocacy.

For more information on the annual Student Writing Competition and the other activities of the LCCHP, please visit our website at http://www.culturalheritagelaw.org/.

Ninth Circuit Issues Decision in Von Saher v. Norton Simon Museum of Art

Ninth Circuit Strikes Down California's Holocaust Era Statue of Limitations in Von Saher v. Norton Simon Museum of Art, but Permits von Saher to Proceed on Other Grounds – Petitions for Rehearing Pending

On August 19, 2009, the United States Court of Appeals for the Ninth Circuit issued its opinion in Marei von Saher v. Norton Simon Museum of Art at Pasadena, 578 F.3d 1016 (9th Cir. 2009), striking down as unconstitutional California's unique Holocaust Era statute of limitations, Code of Civil Procedure section 354.3. This statute permitted suit against a museum or gallery for the recovery of Holocaust Era artwork if commenced on or before December 31, 2010, arguably permitting claims that might have expired under California's general three-year statute of limitations.

Although the court held that section 354.3 "does not conflict with any current foreign policy espoused by the Executive Branch," it nevertheless was found unconstitutional under a field preemption analysis, because it infringed on a foreign affairs power reserved by the Constitution exclusively to the federal government. The Ninth Circuit pointed out that "the relevant question is whether the power to wage and resolve war, including the power to legislate restitution and reparation claims, is one that has been exclusively reserved to the national government by the Constitution. We conclude that it has."

The dissenting opinion by Judge Pregerson asserts that the majority read the statute too broadly by concluding that section 354.3 created a world-wide forum for resolution of Holocaust restitution claims and that the statute applied to any museum or gallery, when in fact it is limited to only those entities subject to the jurisdiction of the State of California. Judge Pregerson also remarked that section 354.3 does not provide for war reparations, but rather constitutes a regulation over property within the state's jurisdiction, a subject that is traditionally and appropriately a state function.

Although the majority cut off one avenue for von Saher, it opened another by ruling that the trial court erred when it held von Saher's claim time-barred under California's general statute of limitations, Code of Civil Procedure section 338(3), which is applicable to pre-1983 claims for the recovery of stolen art and other personal property. The Ninth Circuit noted that "[f]rom the face of Saher's complaint, it is not clear that the statute of limitations has expired . . . Saher's complaint should not have been dismissed without leave to amend." The case has been remanded to the trial court for further proceedings.

It is worth nothing that the California Supreme Court has not yet ruled on what standard governs the accrual of a claim to recover artwork stolen or converted before 1983, under section 338(3), although this standard has been addressed in two California appellate court decisions. Recognizing this, the Ninth Circuit pointed out that it was bound to apply a constructive discovery accrual rule under its prior opinion in Orkin v. Taylor, 487 F.3d 734, 741 (9th Cir. 2007), which held that a constructive discovery rule would be consistent with California Supreme Court precedent. Under this standard, "Saher's cause of action began to accrue when she discovered or reasonably could have discovered her claim to the Cranachs, and their whereabouts." The court noted that it could only reconsider earlier Ninth Circuit precedent by en banc review or after an intervening Supreme Court decision.

Petitions for rehearing and rehearing en banc were filed by both von Saher and the Norton Simon Museum in September 2009. Amicus briefs were filed in early October by the State of California and EarthRights International. Therefore, California's unique Holocaust Era statute of limitations may still be resuscitated, if only until it expires by its own terms at the end of 2010.

Carla Shapreau
Visiting Scholar, Institute of European Studies
University of California, Berkeley

Conference: "Culture and Conflict: The United States and the 1954 Hague Convention"

In March 2009, the United States ratified the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict raising serious questions about implementation and next steps for the U.S. military and for this country generally. The Lawyers' Committee for Cultural Heritage Preservation and U.S. Committee of the Blue Shield present a conference, "Culture and Conflict: The United States and the 1954 Hague Convention," to consider the domestic and international ramifications of U.S. ratification. The conference will begin with an evaluation of the continuing efforts to restitute art works looted during the Holocaust and not recovered in the immediate aftermath of World War II, particularly in light of the June 2009 Prague conference on the status of restitution efforts throughout Europe and the United States. The program will then turn to what government organizations, particularly the U.S. military, are doing to ensure compliance with the Hague Convention and to avert or mitigate cultural damage in future conflicts. The final panel will discuss what more the U.S. must do to protect its own cultural heritage in event of conflict, the prospects for future ratification of the Hague Convention's First and Second Protocols, and the role of the Hague Convention ratification within U.S. public and cultural diplomacy.

The conference will be held on Friday, October 23, 2009, at the National Museum of Women in the Arts in Washington, D.C. Confirmed speakers include:

Lynn Nicholas, author of Rape of Europa: The Fate of Europe's Treasures in the Third Reich and the Second World War
Monica Dugot, Senior Vice-President and International Director of Restitution, Christie's, New York
Robert Edsel, author of The Monuments Men: Allied Heroes, Nazi Thieves, and the Greatest Treasure Hunt in History
Patty Gerstenblith, President, Lawyers' Committee for Cultural Heritage Preservation, and Distinguished Research Professor, DePaul University College of Law
Karl von Habsburg, President, Association of National Committees of the Blue Shield, and Cultural Property Protection Officer, Austrian Army
Richard Jackson, Special Assistant to the Judge Advocate General for Law of War Matters and Colonel (Ret.), U.S. Army
Thomas R. Kline, Partner, Andrews Kurth LLP and Assistant Professorial Lecturer, George Washington University, Museum Studies Program
Hays Parks, Deputy General Counsel for Law of War Matters in the Department of Defense General Counsel's Office and Colonel (Ret.) U.S. Marine Corps
Corine Wegener, President, U.S. Committee of the Blue Shield; Associate Curator, Decorative Arts, Textiles, and Sculpture at The Minneapolis Institute of Arts, andMajor (Ret.) U.S. Army Reserve
Nancy Yeide, Head, Department of Curatorial Research, National Gallery

The Lawyers' Committee will hold its first members meeting and a reception at the National Trust for Historic Preservation the afternoon of Thursday, October 22.

A full program and registration for the conference will be available on the LCCHP website, culturalheritagelaw.org, on September 24, 2009.

Lucille Roussin to Speak at Holocaust Era Assets Conference

The Holocaust Era Assets Conference is convening in Prague this weekend. The opening ceremony is scheduled for 6pm Friday, June 26, and the conference will run through Tuesday, June 30. LCCHP Board member Lucille A. Roussin is one of the invited speakers and will give a presentation on Jewish ceremonial objects looted during WWII and distributed to Jewish communities afterwards by Jewish Cultural Reconstruction. Many of the objects are problematic because they are identifiable to either existing Jewish communities or private families and should be restituted. More information is available at the conference webpage: http://www.holocausteraassets.eu/.

U.S. Prepares for June “Holocaust Era Assets” Conference in Prague

Early last month, Ambassador J. Christian Kennedy, the U.S. State Department’s Special Envoy for Holocaust Issues, for the second time met in Washington, D.C. with key stakeholders in the movement for restitution of works of art looted by the Nazis—including museum representatives, claimants, and attorneys specializing in Nazi-era art litigation—in preparation for the June 26-30 international conference “Holocaust Era Assets” taking place in Prague. The purpose of the Prague conference is to analyze the progress made in the wake of the landmark 1998 Washington Conference, which developed principles for resolving Holocaust asset issues, including claims regarding Nazi-confiscated works of art, and to improve upon current research and restitution practices.

One of the key issues of the meeting concerned the potential establishment of a U.S. national commission to assist in the resolution of claims to Nazi-confiscated works of art and what role such a body would play in the international community. As one participant noted, claimants’ first actions toward restitution are often ad hoc and therefore quickly break down into adversarial conflict; a national commission or other structured means for expediting the processing of claims would lead to an increased number of just and fair results. Museum representatives suggested that a new institution is not warranted because the success of mediation results in only a minority of claims reaching the litigation stage. One suggestion was the establishment of a national version of New York’s Holocaust Claims Processing Office, which assists claimants in research and recovery efforts. A national entity, whether in the form of a commission or modeled after New York’s HCPO, would be a monumental step for claimants, who often face barriers such as the high cost of research when pursuing claims on their own, and it could play an important role as an example for other nations to follow.

Most at the Washington meeting were of the mindset that a primary objective of the Prague conference should be to convince countries to improve upon the means for reaching the merits of the asset-theft claims, which are often countered on statute of limitations or similar legal grounds that would otherwise result in their dismissal early in the litigation process or generally prevent restitution on technical rather than equitable grounds. There were also calls for more resources for provenance research and disclosure of available information to both sides in contested claims.

In his concluding remarks, Stuart Eizenstat, the former U.S. Ambassador to the European Union who will head the U.S. delegation to the Prague conference, underscored the importance of maintaining a perspective that “steps back…and looks at the seminal event itself and the theft that accompanied it; everything else flows from that.” He continued, “I think the important point is that everyone who has come in this room, with very disparate ideas, and disparate interests and representations, has been very constructive in trying to come to the core issue of achieving justice in an expeditious way.”

Belgium Ratifies the 1970 UNESCO Convention

Last month, Belgium became the 117th country to ratify the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.  The Convention will enter into force for Belgium on June 30, 2009.  Belgium is one of a growing number of European antiquities-market countries that have taken steps toward restricting the movement of looted antiquities through their borders – Norway ratified the Convention in 2007, Germany ratified the Convention and passed implementing legislation in 2007, and the Netherlands is considering a bill that would ratify and implement both the 1970 UNESCO Convention and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. 

Belgium’s instrument of ratification limits the definition of “cultural property” under the Convention to the terms of the “Annex to Council Regulation (EEC) No 3911/92 of 9 December 1992, as amended, on the export of cultural goods and in the Annex to Council Directive 93/7/EEC of 15 March 1993, as amended, on the return of cultural objects unlawfully removed from the territory of a Member State.”  At this time, there is no further information available as to how Belgium will implement the Convention.

Holocaust Restitution Bill Up for Consideration in UK Parliament

The Holocaust (Stolen Art) Restitution Bill, introduced in January by Andrew Dismore MP, will have its Second Reading in the House of Commons on May 15.  The impetus for the bill was a 2005 recommendation by the UK’s Spoliation Advisory Panel to restitute the Benevento Missal to Benevento Cathedral in Italy.  The missal, a 12th century manuscript, was acquired by a British citizen in 1944 from an Italian bookseller and made its way to the British Museum Library in the late 1940s.  In light of the legal restrictions on deaccessioning publicly held works – in the case of the missal, a law prohibiting the British Library from deaccessioning manuscripts received from the British Museum - the Panel proposed the creation of a new law authorizing the British Library and the British Museum to restitute Nazi-era spoliated works. 

Currently, British national museums are legally constrained from deaccessioning items in their collections that are claimed for restitution and the only form of relief available to claimants is monetary compensation.  Deaccessions are further subject to individual museum policies that prefer the transfer of objects to institutions within the public domain over private organizations or individuals.  The full text of the Restitution Bill is not yet available, but its official summary indicates that it aims to “provide for the transfer from public museum and gallery collections of arts, artefacts and other objects stolen between 1933 and 1945 by or on behalf of the Nazi regime, its members and sympathizers” and “provide for the return of such artefacts and objects to the lawful owners, their heirs and successors.”  This would clear a path not only for the return of the objects themselves, but also for the return of objects to private entities who are deemed the true owners of looted objects held in British public institutions.

An earlier attempt to loosen the restrictions on restituting Holocaust-era spoliated works through amendments to the draft Heritage Protection Bill failed when that bill was dropped in late 2008.  (The Heritage Protection Bill would also have enabled the U.K. to ratify the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict.)  As the Holocaust (Stolen Art) Restitution Bill progresses through Parliament, updates on its status can be obtained at http://services.parliament.uk/bills/2008-09/holocauststolenartrestitution.html.  

Reflections on the Anniversary of the Iraq Museum Looting

As we observe the sixth anniversary of the looting of the Iraq Museum in Baghdad and remember also the looting of many other cultural institutions and archaeological sites throughout Iraq, it is worth reflecting on some of the changes that have occurred, many as the result of the worldwide attention that focused on the problems of looting of sites and institutions not only in Iraq but throughout the world.

Probably the most significant change is that the United States became a party to the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict when it deposited its instrument of ratification on March 13, 2009. Undoubtedly the longest-awaited event (for over fifty-four years), this signaled at least a shift in attitude by the United States which, although it has followed those portions of the Convention that are accepted as part of customary international law, will now make greater efforts to prepare its military to protect cultural property in both current and future conflicts. The United Kingdom is also making progress toward ratification of the convention and its protocols.

The response to the looting of the Iraq Museum also saw swift world-wide action to prevent trade in cultural materials illegally removed from Iraq, including a UN Security Council Resolution and legislation or regulations enacted by the European Union, the United Kingdom, Switzerland, and the United States, among others. No other event in the recent history of cultural heritage preservation seems to have generated such a quick and universal response, demonstrating that when sufficiently motivated, the nations of the world can act to protect their shared heritage.

Finally, we note that three organizations were founded in the United States, all of which have taken on different aspects of the movement to preserve cultural heritage. SAFE (Saving Antiquities for Everyone) was founded as a grassroots movement to raise public awareness of and interest in preserving heritage. The US Committee of the Blue Shield, a part of the International Committee of the Blue Shield, was founded to address the challenges of protecting cultural property during armed conflict and during natural disaster. It has taken the lead in working with the US military to train our forces in cultural heritage awareness and preservation. Finally, the Lawyers Committee for Cultural Heritage Preservation, although founded to address cultural heritage preservation both domestically within the United States and internationally, was created as part of this same movement. While the effect of war on Iraq’s cultural heritage was tragic, and the efforts to preserve and protect its heritage is still an ongoing struggle, the impact of the looting of the Iraq Museum was surely one that none could have predicted.

SAFE Global Candlelight Vigil for the Iraq Museum

SAFE (Saving Antiquities for Everyone) is hosting its annual candlelight vigil for the Iraq Museum on April 10-12.  The vigil commemorates the loss to the global community resulting from the systematic looting of the Iraq Museum in April 2003, during which thousands of antiquities went missing or were destroyed.  Detailed information is up on SAFE's website.

The Archaeological Institute of America is hosting a vigil on April 10 at Macalester College in St. Paul, Minnesota, which will also feature Cori Wegener of the U.S. Committee of the Blue Shield.  The Mead Art Museum is co-hosting a vigil with the Iraqi Children's Art exchange at Amherst College in Massachusetts on April 14, including a presentation of Iraqi children's artwork and a tour of the museum's antiquities gallery.  This is a great opportunity to raise awareness about the threat to humanity's material past.  SAFE is also calling for volunteers to host vigils worldwide, so you can't make it to one of these, you can get your own community involved by contacting SAFE at this link:  http://www.savingantiquities.org/hostvigil.php.

U.S. and Honduras Extend Bilateral Agreement

On March 11, 2009, the United States and Honduras extended their Memorandum of Understanding that restricts the import into the United States of Pre-Columbian archaeological materials. The United States enters into MOUs or bilateral agreements with other States Parties to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property under Article 9 of the Convention and the U.S.’s implementing legislation, the Convention on Cultural Property Implementation Act. These agreements last for a maximum of five years but can be renewed an indefinite number of times. 

This agreement is substantially the same as the 2004 agreement with Honduras, the text of which can be found at: http://culturalheritage.state.gov/hnfact.html.  Pre-Columbian objects that belong to one of the designated categories and are therefore subject to import restriction may enter the United States if accompanied by an export license from Honduras or if they left Honduras before March 12, 2004, the date of entry into force of the original agreement. The Federal Register notice may be found at: Vol. 74, No. 46 / Wednesday, March 11, 2009 / Rules and Regulations 10483.

Law Students: Submit Your Paper To The 2009 LCCHP Student Writing Competition in Cultural Heritage Law

Law students interested in submitting a paper for the 2009 Student Writing Competition in Cultural Heritage Law can access the submission form and competition details on the LCCHP Education Committee's writing competition page.  Faculty members may also access the form to nominate a student paper for consideration.  The window for submission closes on June 12, 2009. 

Suitable topics for analysis include cultural property, art law, historic preservation, indigenous cultures and intangible heritage (but not intellectual property except as it relates to intangible indigenous heritage).  Thanks to the generous sponsorship of Andrews Kurth, LLP, the first-place paper will receive $1,000 and the second-place paper $500.  In addition, the winning papers may be offered publication in the Yearbook of Cultural Property Law or on the LCCHP web site.  

If you are a law student interested in cultural heritage law, further information on the LCCHP's newly formed Students and New Professionals Committee is available at: http://www.culturalheritagelaw.org/education/students-and-new-professionals-committee.

U.S. v. Eighteenth Century Peruvian Oil on Canvas Painting

The District Court for the Eastern District of Virginia recently issued the first published decision in a case of forfeiture brought under a Memorandum of Understanding under the Convention on Cultural Property Implementation Act, 19 U.S.C. § 2602. The two paintings, an 18^th and a 17^th century oil on canvas, were brought into the United States from Bolivia through Miami International and Reagan Washington National Airports. Both paintings are representative of the Cuzco School of Art, which began in the Incan town of Cuzco in south-central Peru, and had been cut out of their frames for transport. A dealer who was asked to sell the paintings suspected they were stolen and contacted the FBI, which seized the paintings. The importer chose to contest the administrative forfeiture. The government moved for summary judgment, which the court granted.

The MOU with Peru includes on its designated list of cultural materials subject to import restriction “[o]bjects that were used for religious evangelism among indigenous peoples” and specifically mentions paintings of the Colonial period, between 1532 and 1821. Although required for the import of objects on the designated list that left the country after the effective date of the import restrictions, the importer could not produce a certificate showing that export from Peru was not in violation of Peruvian law.

The decision is notable because it clearly sets out the placement and shifting of burden of proof in CPIA forfeiture cases. The United States bears the initial burden of showing that the seized property is designated under an MOU with another State Party to the 1970 UNESCO Convention and is subject to import restriction under the CPIA. Once the government makes this showing, the burden of proof shifts to the claimant to establish “by a preponderance of the evidence, that the property is not subject to forfeiture, or to establish an applicable affirmative defense.” In this case, the claimant defended by stating that the paintings came from Bolivia, not Peru, but the court rejected this defense because the U.S.-Bolivia MOU also covers Colonial and Republican religious art, including oil paintings of the saints, angels, apostles and Holy Family and dating between 1533 to 1900. Therefore, regardless of whether the paintings had originated in Peru or in Bolivia, they were still subject to forfeiture.

Update on Christie’s Sale of Chinese Sculptures

The sculptures of a rat and of a rabbit, originally part of the zodiac fountain of the Imperial Palace in Beijing, were each sold for close to $20 million at the Christie’s sale in Paris of the Yves St. Laurent estate. Despite China’s protests that Anglo-French forces looted the sculptures in 1860, the sale exceeded the pre-sale high estimates. Chinese authorities reacted angrily and, according to a Bloomberg News report, will require Christie’s to give details of the ownership and provenance of any artifacts it wants to bring in or out of China. A spokeswoman for China’s Foreign Ministry indicated that China will continue to seek the return of the sculptures, although, as the French court that heard a last-minute attempt to stop the sale evidently concluded, it is unlikely that any international conventions or domestic law will require these returns. And while it is desirable to seek more documentation and transparency in international art transactions, it is also not clear how China will carry out these additional requirements for Christie’s-related sales.

Museum in Baghdad Reopens

On Monday, the Iraq Museum in Baghdad reopened, despite controversy among the museum’s professionals and various government officials as to whether the museum was ready and could be adequately protected. Eight of the museum’s twenty-six galleries were opened, including a display of some of the artifacts looted from both the museum and archaeological sites in Iraq that have been returned to Iraq over the past six years.

A collection of news stories, photos (including one of a woman wearing replicas of ancient jewelry) and a video can be seen at: http://ancientworldbloggers.blogspot.com/2009/02/iraq-museum-open.html.

The story of the looting of the museum in April 2003 with the loss of about 15,000 objects is now well known, and the looting of archaeological sites particularly in southern Iraq (with the loss of perhaps hundreds of thousands of artifacts) has been documented through the satellite imagery studied by Professor Elizabeth Stone. Iraqi artifacts looted from the museum and from sites have appeared throughout the world, including most recently cuneiform tablets that were seized in Peru, reportedly on their way to the United States. Although surveys of a handful of better-known sites done last summer have shown that looting at these few sites has abated, less well-known and documented sites are still at considerable risk.

With the opening of the museum, Iraqi officials have announced the formation of a unit of trained guards to be deployed to protect these sites. Such protection, which is best carried out by Iraqi guards, is much needed and may help to preserve these sites for future study of the rich Mesopotamian past. The status of the reconstitution of Iraq’s other cultural institutions, the national library, archives and other museums in Baghdad and other cities, is not clear. But if the Iraq Museum can present professional displays, attracting visitors and providing security for its collections, then this is a hopeful sign that the reconstruction of Iraq’s other cultural institutions and the means to protect them will follow.

China’s Attempt to Prevent Christie’s Sale Rebuffed by French Court

Two of twelve bronze animal sculptures, representing the head of a rat and the head of a rabbit, which were part of the zodiac fountain of the Imperial Summer Palace of Emperor Qianlong in China and looted by British and French forces during the Second Opium War of 1860, are to be auctioned by Christie’s in Paris on behalf of the estate of the designer Yves St. Laurent and his partner, Pierre Bergé. The proceeds of the auction, which includes over 700 art works belonging to the estate, will be used to fund the Yves Saint Laurent Foundation. Chinese authorities have been concerned about the sale and would like to recover the sculptures without paying the presale estimate of $10-13 million for each sculpture. Chinese authorities also view repurchasing the sculpture as a tacit recognition that title to the sculpture could have legitimately passed to the current possessors.

A group of Chinese lawyers, representing the Association for the Protection of Chinese Art in Europe, sued in French court to prevent the auction from going forward. It is difficult to see what would be the legal basis for such a suit. In news reports, Chinese officials have been quoted as citing to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and the 1995 Unidroit Convention on Cultural Property. While both conventions clearly state that valid legal claims that predate the entry into force of these conventions are not negated by the convention, neither convention has any retroactive effect.

In addition, although France has signed the Unidroit Convention, it has not yet ratified it. Furthermore, French law recognizes the good faith purchaser doctrine—meaning that after the passage of time, one who purchases stolen property may nonetheless obtain title to it. Given the long period of time, close to 150 years, since these sculptures were stolen, it did not seem likely that redress could be obtained in court. The Tribunal de Grande Instance in Paris rejected the claim today and the sale is slated to go forward tomorrow. It remains to be seen whether the auction achieves the high presale estimates in this economic climate.

This case demonstrates the inability of international law, because of the fundamental principle of non-retroactivity, to correct what many would view as historical injustices. In some cases what would be considered today to be an injustice or illegal was not illegal at the time the act was carried out. In other cases, the passage of time has rendered a claim invalid. It is worth focusing on contemporary issues of looting and theft—as China has done with the new bilateral agreement with the United States under the UNESCO Convention to restrict the import of certain categories of undocumented archaeological materials.

Archeological Conservancy Brief of Amici Curiae

The National Trust for Historic Preservation, the Society for American Archaeology, the Archaeological Institute of America, and the Lawyers' Committee for Cultural Heritage Preservation submitted an amicus curiae brief in support of the Archaeological Conservancy in a dispute concerning Texas land with an archaeologically significant site.

Read the Brief of Amici Curiae