Stealing Beauty: Stopping the Madness of Illicit Art Trafficking

I. INTRODUCTION II. CONCEPTUAL AND FACTUAL BACKGROUND AND ANALYSIS A. Risky Business: Black Market Art Trade Will Never Be Completely Eliminated B. Beauty Is in the Eye of the Beholder: Defining Cultural Property and the Effect on Regulatory Application and Interpretation III. THE GRAND ILLUSION: CULTURAL NATIONALISM AND INTERNATIONALISM ARE NOT MUTUALLY EXCLUSIVE IV. PROTECTION OF CULTURAL PROPERTY A. International Agreements 1. 1954 Hague Convention 2. 1970 UNESCO Convention and Its Implementation in the United States 3. 1995 UNDROIT Convention B. Cultural Property Protection in the United States 1. Role of Criminal Law 2. Civil Protection 3. Common Law Replevin C. Proposals 1. Economic Incentives and Preventing Entry to the Black Market 2. International Art Funds V. CONCLUSION I. INTRODUCTION looting of museums in Iraq during the war on terrorism (1) and the recent theft of Munch's The Scream and Madonna (2) have once more thrown into the world's spotlight the issues of illicit art trade, prevention, and repatriation. Governments around the world have recognized the importance of identifying and preserving each nation's heritage and have enacted national legislation and international conventions to facilitate international cooperation toward those ends. (3) purpose of these enactments is two-fold: the laws attempt 1) to deter theft of cultural and 2) to facilitate repatriation of the property when appropriate. (4) In spite of heightened awareness and the implementation of preventive schemes within and among nations, the problem of black market art trade persists. (5) Based on extrapolations of incidents reported to major police organizations, illicit art trade generates billions of dollars in transactions each year. (6) still dominant conceptual framework conceived by John Merryman for analyzing property enactments rests upon a foundation of the binary opposition between internationalism and nationalism. (7) former term denotes humankind's general interest in any given piece of property, whose interest predominates over that of any nation, and correlates with the free movement of property. (8) latter term expresses the notion of a national interest in whatever may be considered its property and correlates with restrictions on the international art market. (9) As will be explored in greater detail, Merryman reads two major international conventions as reflecting these competing concepts. (10) By extension, laws implementing such conventions and other national laws should also exhibit, to varying degrees, nationalist and internationalist characteristics. This Comment begins by discussing in Part II the factual and conceptual background of the international regulation of art theft. Subpart II.A discusses the significance of defining property in determining regulatory scope. Subpart II.B describes the nature and causes of black market trade in stolen art. Part III discusses and critiques the theories of nationalism and internationalism, which are the two basic theories underpinning policies regarding regulation of the art trade and the repatriation of stolen property. Part IV analyzes, criticizes, and recommends improvements to the laws that attempt to deter entry of property into the black market and facilitate recovery of that property once it does so. Part V suggests that the goals of property laws may never be achieved, but perhaps the worthier part is the dialogic process by which national officials, art dealers, museum administrators, lawyers, and academics alike contribute to the property debate and the evolving legal framework. …