Civil Forfeiture and Transnational Cultural Property Returns in the United States

Abstract

This article will examine forfeiture of cultural property involved in transnational disputes. It will focus on the ever-growing body of civil forfeiture actions, or in rem actions, against objects of cultural heritage in the United States, where there has been a shift away from primarily relying on private litigation of cultural property disputes toward civil forfeiture actions brought by the federal government. It will examine how civil forfeiture has proven to be an effective procedural device for courts to adjudicate competing claims to property and to effectuate return to owners, particularly source nations. It will also explore how private international law elements pertain to these actions, such as the application or rejection of foreign national ownership laws in U.S. courts, as well as the possibility of enforcement of foreign transnational forfeiture orders (for example, Italy’s transnational forfeiture order for the ‘Getty Bronze’ in California, the lawfulness of which was recently upheld by the European Court of Human Rights). It will examine the advantages and the downsides of the use of forfeiture as it relates to returns for international cultural heritage and discuss whether the end – that is, restitution to source nations – justifies the means.