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INTERNATIONAL CULTURAL
PROPERTY TRUSTS
MARION F. WERKHEISER, ESQ.
13th
US/ICOMOS International Symposium, May 22, 2010
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The Challenge
This map shows
major ancient Mayan
sites distributedacross the modern
states of Mexico,
Guatemala,
Honduras, ElSalvador and Belize.
http://www.latinamericanstudies.org/maya/preclassic-map.jpg
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The Challenge
This map shows the expansion of the Inca
Empire in South America, overlaid on modern
national borders.
Moche sites are
predominantly
located in northern
Peru, but objectssimilar to those
created by the Moche
have been found inEcuador and Bolivia.
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Sipn
Photos by Donald Craib
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National Stolen Property Act
Source countries invoke national ownership laws to
reclaim objects in U.S. courts. They must prove:
WHERE: Objects came from their country;
WHEN: Countrys 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)
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Cultural Property Implementation Act
Requires source countries to request that U.S. adopt
their export restrictions as U.S. import restrictions
Countries must establish:
Sites are subject to pillage;
It is enforcing its own laws;
Less drastic measures are not available;
Import restrictions are being applied in other marketcountries (in concert);
Restrictions are in the best interest of the international
community.
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The Challenge
Defendants can expose weaknesses in the system:
Undocumented findspot
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?
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ICPT Features
Unanimity
Clear definition of what cultural property is
included
Establish true ownership
Address what happens when new finds alter the
understanding of the culture
Board composition
Funding mechanism
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Legal Benefits
Produce a single claimant in U.S. courts
Close loopholes and make it easier to prove that
objects are stolen under the National Stolen
Property Act
Make treaties negotiated under the Cultural
Property Implementation Act more efficient and
effective
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Other Benefits
Scholarship
Research
Public Education International Exchange
Stewardship
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Challenges to ICPTs
Require significant and sustained international
cooperation on a large scale
Political will and resource commitments to sustain the
trust
Holdout problem
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Contact Information
Marion Forsyth Werkheiser
Attorney at Law(703) 489-6059