Recent media reports have brought to the forefront of the public's attention the worldwide problem of illegal trade in stolen art.! By some accounts the problem has grown to critical proportions, and is linked to the illicit drug trade. The high value of art, combined with a low recovery rate and few arrests, has made illicit trade in art an attractive business for criminals. Worldwide, trade in stolen art is estimated to total between $860 million and $2.6 billion annually.
Pillaging, theft and destruction of cultural property also continues to be a problem during war despite international agreements which prohibit such action. During both World Wars, invading soldiers destroyed or stole many movable art treasures. Such was the case of the Quedlinburg treasures, a valuable"0 collection of medieval art" stolen from a German church at the end of World War II." When the treasures resurfaced last year in the possession of an American soldier's heirs, Germany filed suit in the United States for their recovery."
Despite the fact that American property law favors the original owner, Germany settled out of court, paying the heirs close to $3 million for the entire collection. The art world has expressed profound dissatisfaction with the settlement, warning that it sets a dangerous precedent. Others, however, insist that the agreement represents a practical solution for the restitution of stolen property. While in principle it may seem unjust for the rightful owners of stolen property to pay for its return, the Quedlinburg settlement may be better understood when viewed in the framework of the law that governs stolen artwork cases.
International efforts to curb the illicit trade in art have been largely unsuccessful Competing national policies of art-importing and art-exporting countries have weakened attempts to gain world support for international agreements governing stolen property cases! Furthermore, rules of common law nations, such as the United States, which protect the rights of the original owner, conflict with the civil law of other nations which favor the rights of the bona fide purchaser. In an effort to strike a balance between these competing interests, the courts have created inconsistencies in the body of law governing stolen cultural property.
The competing policies and inconsistent standards governing stolen property cases have created roadblocks to international cooperation. Some scholars, therefore, have advocated uniform standards which would provide for more equitable application of existing law, and which would be accepted by a large number of both civil and common law nations.
In response to problems of the illicit trade in art and antiquities, the International Institute for the Unification of Private Law (UNIDROIT or the Convention) is in the process of drafting a model convention. UNIDROIT's Preliminary Draft Convention on Stolen or Illegally Exported Cultural Objects is an attempt to reconcile differences within the national policies and domestic law of various nations. By creating a workable set of uniform rules and private litigation rights, the drafters of the UNIDROIT Convention seek to harmonize antithetical aspects of common law and civil law jurisprudence on the issue in order to attract a large number of signatory nations. The UNIDROIT Convention is broader in scope a than existing agreements and takes much-needed steps toward balancing the interests of original owners and bona fide purchasers? Among other provisions the Convention establishes a right of return of stolen objects, thereby protecting the property rights of the original owner. At the same time, it provides for an equitable remedy of compensation to be paid to good faith purchasers who have taken appropriate steps to ensure that the art has good title.
