Repatriation in Context: The Case for Cooperation

April 14, 2025

By John Freeman

Cultural heritage is contentious. ^{Recent litigation between the Getty Museum and and Italy is a testament to the polarized nature of these disputes, which pit museums against nation states. While Italy argues that the ancient bronze statue known as the “Victorious Youth” should return to Italy, the Getty Museum contends that the work should remain in its collection. This case is individually nuanced and significant; however, in their quarrel over whether to repatriate (i.e., return the object to the nation state), both sides advance arguments that are decades old.}

Repatriation has always been controversial. Given the great cultural (and economic) value of these artifacts, ^{it is hardly a surprise that ownership debates have been ongoing for centuries. Over that time, two competing approaches—one in favor of repatriation, one against—have ebbed and flowed in a dance that, as of Getty v. Italy, remains unresolved.}

This article traces a brief evolution of that discourse. In doing so, it highlights how arguments against repatriation—the very same arguments now advanced by the Getty—have remained unchanged for decades. While there is truth to these repeated assertions, their ongoing use in litigation today functions to perpetuate polarization. This article suggests that, to reach an enduring resolution, museums should instead collaborate with nations (as they have in recent years) to pursue creative solutions to repatriation disputes, such as replicas and long-term loans. In a world where cultural heritage is undervalued, those who care should be working with—not against—one another.

I. National Laws

The legal grounds for repatriation reside in each nation’s laws. Specifically, cultural property legislation tends to (1) regulate the export of cultural objects or (2) designate certain objects as property of the state. ^{In some cases, nations enacted these laws over a hundred years ago. For these countries, heritage holds national significance, since a connection to the ancient past lies at the heart of their national identity.}

Italy, for example, passed its first cultural property regulation in 1902. Law No. 185 levied an export tax on cultural objects older than 50 years and mandated that any discoveries or sales be reported to the government. ^{Seven years later, Law No. 364 went a step further by expressly prohibiting any unapproved sale or export of culturally significant objects, which the Italian Ministry of Education had the power to purchase. More importantly, the law affirmed any archaeological discoveries to be property of the Italian state.}

In this respect, Law No. 185 is an example of a patrimony law. From the Latin patrimonium (property inherited from one’s father), patrimony laws dictate an inheritance: The modern nation state inherits the ancient objects found in its region. After 1909, any antiquity discovered in Italy lawfully belongs to the State, as affirmed by subsequent legislation in 1939 and 2004. ^{Likewise in Greece after 1899, Egypt after 1874, and Turkey after 1874.}

But even with patrimony laws in place, looting persisted, ^{and with it the need for international cooperation. In 1970, The United Nations Education, Scientific and Cultural Organization (“UNESCO”) introduced the Convention on the means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (“1970 Convention”). Essentially, the 1970 Convention functions as international enforcement of national patrimony laws. Much like the Italian Law No. 364, the 1970 Convention declares all “Cultural property found within the national territory” to be “part of the cultural heritage of each State.” Other nations, then, must commit to preventing the import of cultural property that has been illegally exported, and to “take appropriate steps to recover and return any such cultural property imported after the entry into force of this Convention.” In other words, nations need to repatriate stolen artifacts (or at least those illicitly exported after the 1970 Convention).}

But the 1970 Convention was just that: a convention. Even after entering into force in 1972, its “requirements” remain non-binding. Nations can choose whether to codify the 1970 Convention into law, which creates a distinct division between so-called “source” and “market” nations. As one might expect, the nations ratifying the 1970 Convention were mostly those losing cultural objects, not those benefiting. ^{And even those market nations that did ratify were slow to codify: The United States, for example, ratified the convention in 1972, but waited until 1982 to codify (becoming one of the first market nations to do so). Even then, the Cultural Property Implementation Act only implemented parts of the 1970 Convention. Nonetheless, it was a significant step forward, which—as one might expect—stirred vigorous opposition.}

II. Resistance

John Henry Merryman led that opposition. Merryman, a Stanford Law School professor, identified two approaches to cultural property in the 1980s: nationalism and internationalism. ^{In response to the rising support for national patrimony laws and repatriation (“nationalism”), Merryman instead advocated that museums should keep cultural objects since they belong to a shared human heritage (“internationalism”). In support of his position, he advanced the following arguments (among others):}

• World Heritage: that cultural objects are “components of a common human culture,” ^{and that this idea is embodied in the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict: “Being convinced that damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world.”.}
• Part of Nation: that certain cultural objects have, over time, become part of the national heritage of the nation in which they reside.
• Accessibility: that cultural objects should be “exhibited to a wider audience,” which cannot be achieved when nations hoard antiquities (including duplicates) and “fail to spread their culture.”
• Time: that repatriation claims are time-barred by statutes of limitations.

Merryman’s arguments against repatriation arose from the most famous repatriation dispute: the Parthenon Marbles. ^{Otherwise known as the “Elgin Marbles,” these monumental pieces of decorative marble once adorned the ancient Athenian Parthenon; that is, until they were taken by British Ambassador Lord Elgin and sold to the British Museum in the first quarter of the 19th century. In 1983, Greece submitted an official, UNESCO-endorsed request to Britain for their return, which the British government adamantly refused. Similarly, museums in the United States continued to resist repatriation requests, and the courts upheld their defense.}

III. Persistence

Lack of substantial progress led to another international convention. In 1995, the International Institute for the Unification of Private Law (“UNIDROIT”) introduced the Convention on Stolen or Illegally Exported Cultural Objects. UNIDROIT 1995 is far more explicit in its call for repatriation: “The possessor of a cultural object which has been stolen shall return it.” ^{But again, market nations have largely chosen not to ratify the convention.}

IV. Further Resistance

Museums responded with a statement. In 2002, a group of eighteen internationally renowned museums signed the Declaration on the Importance and Value of the Universal Museums. ^{The document condemns the illicit trafficking of cultural objects, but it also holds that objects “acquired in earlier times” are more complicated and—while all cases are different—should generally stay in museum collections. Simply put, the declaration resisted repatriation.}

Underlying this declaration are Merryman’s arguments from the 1980s:

• Universal Heritage: that these objects are universally admired and significant “for mankind as a whole.”
• Part of Museum: that, over time, objects “have become part of the museums that have cared for them, and by extension part of the heritage of the nations which house them.”
• Accessibility: that public access is the reason why ancient civilizations are now universally admired, and that “museums serve not just the citizens of one nation but the people of every nation.”
• Time: that museums acquired these objects decades ago “under conditions that are not comparable with current ones.”

V. Getty v. Italy

The Getty has now repurposed the same arguments. While Italy expectedly relies on its national laws to prove the statue was unlawfully exported, the Getty contends:

• Not Italian Heritage: that the statue—made in Greece and discovered in the sea—does not constitute Italian national heritage.
• Part of Museum: that, after forty years, the Getty has acquired a right to “the peaceful enjoyment” of the statue.
• Accessibility: that the statue at the Getty is “available to the general public,” and Italy “failed to clarify how it intended to more effectively facilitate access to the Statue.”
• Time: that Italy’s claim is time-barred by the statute of limitations.

It is remarkable how little these core arguments have changed over the past forty years.

VI. Progress

But there has been progress. In U.S. courts, United States v. McClain (1997) and United States v. Schultz (2003) were landmark decisions enforcing national patrimony laws, providing nations (or the United States government acting on their behalf) an avenue for repatriation under the National Stolen Property Act of 1934. ^{Since then, litigation has been somewhat successful in compelling the forfeiture and return of stolen objects. The Antiquities Trafficking Unit of the Manhattan District Attorney’s office has also overseen hundreds of repatriations, including recent returns in 2025. But even more important progress has been made outside the courts.}

Museums have become more receptive to repatriation. The turning point came in the early 2000s: As a result of an Italian investigation into Giacomo Medici—the infamous antiquities smuggler convicted in 2005—evidence surfaced proving incontrovertibly that certain objects in museum collections were looted and illicitly trafficked (many post-1970). ^{The investigation implicated museums, and Italy went so far as to indict Getty antiquities curator Marion True. Compounding the reputational damage was a series of Los Angeles Times articles, in which Jason Felch and Ralph Frammolino further exposed the Getty Museum’s misconduct. Faced with legal pressure and bad press, museums not only repatriated a wave of looted antiquities—including the famous Sarpedon Krater—but also instituted new guidelines in 2004 and 2008. The latter affirmed the so-called 1970 standard: an ethical commitment to only acquire objects removed from their country of origin before the 1970 Convention. In cases violating this standard (i.e. objects looted post-1970), museums generally became more willing to repatriate.}

Since then, museums have furthered their investment in the growing field of provenance research (i.e., tracing the history of objects). In 2024 alone, the Metropolitan Museum of Art hired Lucian Simmons as Head of Provenance Research, ^{the Art Institute of Chicago appointed Jacques Schumacher as Executive Director of Provenance Research, and the Princeton University Art Museum brought on MaryKate Cleary as Curator of Provenance. Increasingly, more museums are dedicating time and resources to their responsibility of due diligence, ensuring that their collections are legal and ethical.}

Conclusion

Litigation perpetuates polarization. Instead, museums ought to continue their efforts out of court to collaborate with nations in further pursuit of creative resolutions.

One solution could be long term (or even permanent) loans. Many nations do not want everything back: Setting aside the logistical challenges, nations benefit culturally and economically (through tourism) when acclaimed museums feature their heritage. With this in mind, museums could cede ownership of objects and, in turn, nations could allow these artifacts to remain abroad. Greece, for example, reached a 50-year loan agreement with the Metropolitan Museum of Art regarding the Leonard N. Stern Collection of Cycladic figurines. ^{According to Kassandra Marinopoulou, President and CEO of the Museum of Cycladic Art in Athens, “The dissemination and promotion of Cycladic and ancient Greek culture internationally has always been the mission of the Museum of Cycladic Art and it is now being fulfilled to the utmost.”}

Another solution could be replicas. ^{For instance, the University of Chicago Institute for the Study of Ancient Cultures displays a cast of the famous Rosetta Stone, and the Acropolis Museum in Athens displays plaster copies of the Parthenon Marbles. While arguably less desirable than originals, replicas take on added significance in the context of repatriation: As visual embodiments of cooperation, these duplicates convey the story of the original’s return, educating the public on the value of amicable repatriation. The Archaeological Museum of Palermo, for example, displays a copy of its Parthenon Marble fragment with signage communicating the original’s return to Greece in 2022.}

Regardless of the precise method, resolution will require cooperation, not litigation. This is true now more than ever: government actions in 2025 have sought to eradicate the term “cultural heritage” from public discourse ^{and eliminate the Institute of Museum and Library Services, which in 2024 provided $266.7 million in grants to libraries and museums. Faced with neglect and blatant disregard for heritage, those who do care should not be locked in polarizing legal battles, but working together to share and educate the world on these cultural objects and their immense value.}

Suggested Readings

• John Henry Merryman, Thinking About the Elgin Marbles, 83 Mich. L. Rev. 1881(1985).
• John Henry Merryman, Two Ways of Thinking About Cultural Property, 80 Am. J. Int’l L. 831 (1986).
• Declaration on the Importance and Value of Universal Museums, Cleveland Museum of Art (2003).
• Patty Gerstenblith, The meaning of 1970 for the acquisition of archaeological objects, 38 J. Field Archaeology 364, 370 (2013).
• Alexander Herman, Restitution: The Return of Cultural Artifacts (2021) (Lund Humphries in association with Sotheby’s Institute of Art).
• Alexander Herman, The Parthenon Marbles Dispute: Heritage, Law, and Politics (2023).
• Livia Solaro, Case Review: Getty v. Italy (2024), Ctr. Art L. (July 24, 2024).
• Ted Loos, The Met May Have Millions in Stolen Art. It’s Not Waiting to Be Asked to Return It, Wall St. J. (Mar 18, 2025).

About the Author

John Freeman is a Legal Researcher at the litigation firm Sperling Kenny Nachwalter and a volunteer for the Center for Art Law’s Nazi-Looted Art Restitution Project. He graduated in 2024 as the salutatorian of his class at Princeton University, where he earned his bachelor’s degree in Classics and focused his research on the issue of repatriation.

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