Gerstenblith on Schultz and Barakat

Patty Gerstenblith has posted a recent article, Schultz and Barakat:  Universal Recognition of National Ownership of Antiquities, which appeared in the recent issue of Art, Antiquity and Law, Vol. 14, No. 1, Apr. 2009.  She discusses the two recent cases in the United States and United Kingdom which lay out the requirements for how courts in these two nations view national ownership declarations of art and antiquities by other nations of origin.  Here is the abstract:

Two decisions, one in the United Kingdom and one in the United States, decided just about five years apart, are significant for universalising the principle that vesting laws – laws that vest ownership of antiquities in a nation – create ownership rights that are recognized even when such antiquities are removed from their country of discovery and are traded in foreign nations. This basic principle has proven to be very controversial in the United States and has been subjected to bitter criticism; yet virtually the same legal principle, when decided in a British court, received little comment or criticism. Compounding the interest of these two decisions is that, although both decisions came to virtually the identical conclusion, they did so utilizing different methods of analysis.

Although laws regulating cultural heritage have a long history, nations have enacted national ownership laws since the nineteenth century for the dual purposes of preventing unfettered export of antiquities and of protecting archaeological sites in which antiquities are buried. When ownership of an antiquity is vested in a nation, one who removes the antiquity without permission is a thief and the antiquities are stolen property. This enables both punishment of the looter and recovery of possession of the antiquities from subsequent purchasers. By making looted antiquities unmarketable, these laws reduce their economic value. National ownership laws thereby deter the initial theft and the looting of archaeological sites that causes destruction to the historical record and inhibits our ability to reconstruct and understand the human past. While reinforcing these goals, the Schultz and Barakat decisions also bring uniformity to the national treatment of this central legal principle.

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