Repatriation’s New Frontier

Interest in the retrieval of ill-gotten treasures is growing in Korea.

AS OUR READERS KNOW, discussions of legal cases in the United States involving the return of looted European art are almost as common as bad puns in our columns.  But while savvy collectors pass on purchasing pieces of the Parthenon, they may not realize the considerable risks involved in acquiring Asian works stolen from countries such as Korea.

Korea has a long history of invasion by foreign powers, most recently, the Japanese, who occupied the country for a 35-year period ending in 1945.  As a result, according to surprisingly precise calculations by South Korea’s Cultural Heritage Administration, as of February 2011, there were 140,560 Korean cultural treasures scattered abroad: 37,972 are in the United States, and more than 65,000 are in Japan.

These are of particular interest to Kwon, a clever Korean client who Skyped us after attending an international repatriation conference in Seoul last summer and wanted our help in securing the return of some of his family’s important ceramics that were now in New York and Osaka, Japan.

We started out by giving Kwon some good news: In America, the general rule is that a thief cannot pass good title to stolen art.  One famous application of this principle was the 1989 federal case Church of Cyprus v. Goldberg, in which the court held that a purchaser of stolen 6th-century mosaics, the American collector Peg Goldberg, had not obtained legal title to them, and mandated their return to their rightful owner, the Church of Cyprus.  The U.S. rule is in contrast to laws in Japan and most other civil law countries, where an innocent purchaser can obtain good title to stolen property.

But Kwon’s claims could still be stymied in the United States if they were brought after the applicable statute of limitations had expired.  For example, New York has a three-year statute of limitations on claims such as Kwon’s, and the clock starts from the time that the original owner demands the return of a work.  In most other states, however, the clock runs from the date that the victim discovers, or should have discovered, the location of the stolen piece.

Another potential roadblock is that a U.S. court might question whether Kwon had diligently pursued recovery of his stolen property.  For instance, in the 2010 case Museum of Fine Arts, Boston v. Seger-Thomschitz, in which the MFA confirmed its rightful ownership of the 1913 painting Two Nudes (Lovers) by Oskar Kokoschka, the federal court dismissed a claim against the museum on the grounds that the delay by the original owner’s heir in bringing the suit prejudiced the MFA, since witnesses with actual knowledge of the transfer were by then deceased.

Since Kwon wasn’t certain that the ceramics had been stolen outright, rather than merely exported illegally, he asked us whether the United States would return works that were improperly exported from a foreign country, even if they weren’t technically stolen.  Our answer: Typically not, assuming the foreign country does not have an agreement with the United States concerning import restrictions American courts will normally allow the current owner to keep art that has been wrongly exported from a foreign country (provided it is not stolen property and was properly declared when it was imported) on the theory that foreign-export restrictions are simply an exercise of a country’s police power and do not create any ownership rights.

Kwon then asked us about suing for the return of his ceramics under international law in an international court.  Unfortunately, there isn’t, as yet, any law or forum with international jurisdiction to decide questions of ownership of artworks.  Kwon acknowledged that he wasn’t only interested in regaining his family’s personal treasures, but also those owned by his homeland:  “If a foreign country says that it owns a work, will the United States enforce that foreign law and return it?”

“Possibly,” we replied.  The National Stolen Property Act (NSPA) criminalizes dealing in property valued at $5,000 or more that has been “stolen, unlawfully converted or taken, knowing the same to be stolen.”

In the 1977 case U.S. v. McClain, the federal government used the NSPA to convict individuals who sold pre-Columbian pieces in Texas after a circuit court established that Mexico actually owned the works.  The court determined that Mexico’s legislation giving the country title to all of its antiquities was clear, so illegally exporting them from Mexico constituted theft.  Similarly, in U.S. v. Schultz, which resulted in the 2003 conviction of the New York antiquities dealer Frederick Schultz for selling stolen artifacts, Schultz’s defense team unsuccessfully argued that Egypt’s patrimony law – which states that antiquities discovered in the country after 1983 are the property of the Egyptian government – was merely an export rule.  The court rejected this argument, holding that “the NSPA applies to property that is stolen from a foreign government, where that government asserts actual ownership of the property pursuant to a valid patrimony law.”

A handful of countries, including Italy and Egypt, have been very successful in compelling foreign governments to repatriate objects of cultural and historical significance.  But South Korea’s hope of reclaiming stolen art from Japan is more problematic in light of the 1965 Treaty on Basic Relations, which normalized relations between the two countries, and under which Korea – in a controversial move – renounced its claim to cultural property in exchange for economic assistance from Japan.

Moreover, identifying the rightful cultural heir isn’t always easy.  The UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, adopted in 1972 (and accepted by the United States and Japan), suggests that culture is everyone’s common heritage.  But the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, adopted in 1995 – neither the United States nor Japan is a member – seems to view cultural property as attached to a particular group.  On top of that, the laws of various countries often conflict in regard to who owns which particular artifact.

In our own experience, a patient and methodical approach to repatriation, rather than a nationalistic and emotional one, has proven most effective.  We generally suggest that clients take a careful inventory of exactly which works are missing, research the history of the pieces, investigate their legal status at home and abroad, and be creative during negotiations.  This approach has already yielded some success for Korea – witness the return last June of royal archives that had been looted by the French during its invasion of Korea, in 1866.  In the innovative solution reached in that case, France, rather than permanently returning the books (which a French court rejected), made a face – saving “permanent loan” of the works to Korea.

Kwon’s final question concerned his private claim: “If a foreign country says that I don’t own a ceramic and won’t return it to me, may I sue that nation in a U.S. court to recover the piece, or for payment equal to its value?” The answer is: Maybe.  In the 2010 case Cassirer v. Kingdom of Spain, a federal court ruled that the California resident Claude Cassirer could sue Spain for the return of the Camille Pissarro painting Rue Saint-Honoré, Afternoon, Rain Effect, 1987, which was taken from Cassirer’s family by the Nazis in 1939 and later acquired by Spain.  Sadly, however, Mr. Cassirer died a few weeks after the ruling, at the age of 89.  The lesson?  Patience and forbearance have their place in the tricky area of repatriation.  But at some point, time runs out.

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