Brooklyn Law Review


Centuries ago, it was a widespread practice to travel the world and return with souvenirs from ancient civilizations. As time advanced, national patrimony laws and export restrictions prohibited this practice; but the art market for antiquities continued to grow. The great value proscribed to these objects of cultural heritage created an opportunity for years of illicit looting, smuggling, and sales. Finally, an international solution was deemed necessary, culminating in the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. But what of the works that had been stolen prior to 1970; is there any hope of the return of ancient artwork now that it has long left the hands of the thief? This note explores the U.S. claims available to foreign nations seeking the restitution of cultural property illicitly exported before the 1970 UNESCO Convention. Most states must rely on common law doctrines like replevin or conversion, which place an enormous burden on the state to prove the validity of its own patrimony laws, in addition to overcoming the defenses of the current owners. By comparing other restitution laws like HEARA and the NSPA, this note proposes a solution that attempts to balance the competing interests of state and owner. New federal law is necessary to recognize the validity of foreign patrimony laws but preserve the right of good faith purchasers to defend the provenance of their collections. Ultimately, this proposal ought to ensure that the collective heritage of mankind goes where it is best preserved.