INTERNATIONAL CULTURAL PROPERTY

TRUSTS
Marion Forsyth Werkheiser
Attorney at Law
Cultural Heritage Partners, LLC
9104 Old Mt. Vernon Rd.
Alexandria, VA 22309
(703) 539-2473
marion@culturalheritagepartners.com

Remarks Delivered at US-ICOMOS Symposium, May 2010

The thesis of my talk today is that we need new approaches to protect antiquities created
by ancient cultures whose traditional boundaries overlap modern state borders. Some of our
sharpest legal tools, including bilateral agreements executed under the 1970 UNESCO
Convention, and prosecution in U.S. Courts under the National Stolen Property Act, fail when
ancient cultural boundaries overlap modern state borders. In those cases, I believe that creating a
new structure—the international cultural property trust—will lead to better outcomes in
protecting archaeological sites and providing proper stewardship for cultural treasures.
International cultural property trusts could be appropriate in numerous examples where
modern state borders overlap ancient cultures. The Mayan culture, which overlaps modern
Mexico, Guatemala, Honduras, Belize and El Salvador, is an excellent example. Others include
the ancient Inca culture, which overlaps Ecuador, Peru, Bolivia and Chile.

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 Ancient Moche sites are predominantly located in northern Peru, but objects similar to
those created by the Moche have been found in Ecuador and Bolivia. It is the Moche culture that
was at issue in the Peru v. Johnson case nearly twenty years ago, the case that has since served
as a cautionary tale for countries seeking to repatriate antiquities from ancient cultures where the
exact findspot of the looted antiquities is unknown. In that case, the country of Peru filed civil
suit in the United States against antiquities dealers who were trafficking in stolen objects from
the Moche culture. These priceless artifacts included gold and silver ornaments and ritual
objects. Peru, as well as many experts in the art world, was convinced that these objects were
from Sipán, the now famous excavation site containing royal Moche tombs. In recent years,
National Geographic has called the excavations at Peru “without a doubt the richest
archaeological find in the New World in this century.”
But back in the late 1980s when dealers in California acquired these Moche objects, the
tombs at Sipán had only recently been discovered by a band of looters, and the richness and
individuality of the site had yet to be established by scientific excavation. Its riches were only a
rumor on the international art market. Because the objects were without a documented findspot,
Peru eventually lost its case, even though the dealers themselves were convicted separately of
Customs fraud and served jail time. The court found that Peru could not prove for certain from
which site the objects came, and since similar objects had previously been found in Bolivia and
Ecuador, there was too much doubt to return the objects to Peru.
So what can we do when these ancient cultural boundaries overlap, and multiple states
could claim ownership of a looted antiquity, since the findspot is uncertain? Rather than have
these countries fight against each other for objects, and undermine other countries’ claims, I
argue that they should come together as a united front and negotiate what I am calling
international cultural property trusts as an effective way to deter looting and ensure preservation
of the past.
In the Johnson case, Peru employed a national ownership law to try to recover its objects
in U.S. courts. National ownership laws are the sharpest tools that source countries have to
protect their antiquities from the international trade. These laws vest ownership in the state of all
cultural assets, above the ground and below the ground, known and unknown, thereby making
the nation the true owner. They also restrict the export of cultural objects except for temporary
exhibition, research or conservation purposes. We do not have a national ownership law in the

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United States, although we do regulate antiquities on public lands. The true national ownership
laws in source countries include antiquities found on both public and private lands.
If an object is looted from a source country with a national ownership law and put on the
international art market, that source country can repatriate the object based on a conversion
theory. While ownership is based on that country’s own law, the country can demonstrate in
U.S. courts (where most of this litigation occurs) that: it owns the object, it was wrongfully
deprived of ownership, and the object should be returned.
Countries began having success with this theory in U.S. federal courts in the 1970’s by
invoking the National Stolen Property Act, and many of you are no doubt familiar with dozens of
examples where the mere threat of litigation has led to objects being returned to their source
country. Here are the issues that a country must prove in U.S. court to reclaim their objects:

WHERE: Objects came from their country;

WHEN: Country’s ownership law was in effect before the objects left the country;

HOW: Objects left the country in violation of the ownership law;

RECIPROCITY: The country enforces its own laws. (2ND Circuit)
The Peru v. Johnson case is the classic example of how it can be difficult, if impossible, to prove
these elements where ancient cultural boundaries overlap modern state borders. Peru lost its case
because an expert witness at trial acknowledged that objects similar to those found at Sipán had
also been found at sites in Bolivia and Ecuador. Pre-Columbian culture spanned not only
modern-day Peru but also areas within the modern political borders of Bolivia and Ecuador.
Because there was not documented excavation of the objects looted from the tombs at Sipán,
there was no proof of their findspot that would stand up in court. It also could not be proven
when the objects left Peru, so it could not be established that they left after the country’s national
ownership law was in place. While sympathetic to Peru’s claim, the court held that Peru did not
establish that the artifacts were looted from modern day country borders. Attorneys who
represent other source countries explain that Peru’s defeat in that case has served to deter them
from asserting repatriation claims in US courts where ancient boundaries overlap modern state
boundaries.
Another approach to protecting stolen antiquities is the 1970 UNESCO Convention, with
which we are all familiar. The United States’ implementation of the Convention requires source

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countries to negotiate bilateral agreements with the United States. Basically, the source country
asks the U.S. to adopt as import restrictions that country’s export restrictions.
To succeed, a country must show that:

Sites are subject to pillage;

It is enforcing its own laws;

Less drastic measures are not available;

Import restrictions are being applied in other market countries (“in concert”);

Restrictions are in the best interest of the international community.
The process is rigorous, and since 1983 fewer than 15 countries have entered into such bilateral
agreements. The process is long and open to much influence. Once entered into, these
agreements must go through a lengthy renewal process every five years. Once they are signed,
the agreements empower Customs enforcement to seize objects illegally imported into the United
States.
Yet the same problems arise if an object could have come from several different modern
states. Defendants can expose weaknesses in the system:

Unknown findspot—did it come from Peru? Ecuador? Bolivia?

Timing of export: before or after the law/ source countries will have different
effective dates

National ownership laws may not be ironclad (e.g., exempt some classes of
objects, or really function as an export law)

Collective action problem: why does the U.S. have to be first to restrict import?
So how could we make both of these tools, the National Stolen Property Act and the
bilateral treaties, more effective as tools to reclaim stolen objects and prevent them from being
looted in the first place? I believe international cultural property trusts are the answer. An
international cultural property trust would be a legal entity negotiated among countries that share
ancient cultural boundaries, and it would own all antiquities from that culture. It would be
jointly administered and funded, and it would have the effect of harmonizing national ownership
laws. Not only would it enhance success for actions in courts of law, it would also have other
benefits, including enhanced stewardship and scholarship.

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 Several items must be addressed to maximize effectiveness. These include:
1) Unanimity. Trusts must include all countries with overlapping cultural boundaries; there
could be a holdout problem, but as long as the majority of countries belong, they should
be able to get past the preponderance of the evidence standard.
2) Clear definition of what cultural property is included. Everything from a civilization? Or
just certain time periods?
3) At a minimum must establish ownership of objects not yet found and documented, but for
policy reasons could also transfer ownership of objects already claimed by member
countries to a trust.
4) Agreement should address what happens when new finds alter the understanding of the
culture (i.e., different dates, geography)
5) Composition of the board; representatives of all member states, but proportion to be
decided—could be based on geography, population.
6) Funding mechanism: initial investment to endow it or make yearly contributions, or both;
private contributions an option—what about individual shares? An alternative to
collecting?
The benefits of such an agreement are clear when it comes to mounting action in U.S. court.
The trust would close loopholes requiring that the findspot be established, the timing of the
export, and the ambiguity of the national ownership law. It would make prosecutions under the
National Stolen Property Act much easier—rather than Peru, for example, asserting ownership,
the Trust would come to U.S. court as a single claimant. Another benefit is that an international
trust would obviate the need for time consuming negotiation of bilateral agreements with the
U.S. under UNESCO. Creating international cultural property trusts would simplify this process
and create efficiencies by requiring only one agreement—between the U.S. and the trust—rather
than the negotiation of several different agreements, with different effective dates.
The benefits of such a trust are not only legal in nature. Trusts could encourage scholarship
and research through increased access, provide a new dimension to cultural diplomacy and
exchange, strengthen stewardship through coordinated activities, and provide a collective voice
for cultural heritage preservation advocacy in the international community. There already exist
many cultural trusts that engage in many of the same programmatic activities we could expect
from an international cultural property trust—examples include the British National Trust, the

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National Trust for Historic Preservation, and the Aga Khan Trust for Culture. A chief difference
that I cannot emphasize enough, however, is that the international cultural property trusts would
actually OWN these objects.
Despite its benefits, there are several challenges to the international cultural property trust
concept. My approach demands a degree of international cooperation that may be difficult for
many of the countries involved. However, I do not think it is impossible. As the collateral
crimes that accompany the antiquities trade continue to absorb countries’ resources, joining
forces will seem more attractive. Yet sustaining the agreements once in place will also require
strong political will and the contribution of resources. As national governments and political
leadership changes over time, will the trust documents be flexible enough to ensure that
preservation goals are still able to be met?
Finally, there is the hold out problem. To be most effective, all modern states that share
ancient cultural borders must be party to the agreement. The benefits will still be enjoyed,
however, if a majority of the countries that share boundaries become party to the trust. The
standard of proof in U.S. civil cases for conversion is a preponderance of the evidence; if the
majority of countries that share boundaries join the trust, then the preponderance of the evidence
should point to repatriating the objects to the trust versus any single country.
In conclusion, international cultural property trusts established among modern states
sharing ancient cultural boundaries could address both the ownership questions of objects whose
findspot is unknown and the proper determination of stewardship of the relevant antiquities. By
sharing the wealth among all modern heirs of an ancient culture, we can better ensure the
preservation of that cultural heritage for future generations.
A model international cultural property trust is available in my article published by the
Chicago Journal of International Law, referenced below. I welcome your comments and
feedback.

Please note that an extended discussion of the international cultural property trusts concept that
contains full citations and sources for information included in this presentation is available in
my article, “International Cultural Property Trusts: One Response to Burden of Proof
Challenges in Stolen Antiquities Litigation,” published in the Summer 2007 issue of the Chicago
Journal of International Law, Vol. 8, No. 1.

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