(Bloomberg Opinion) -- Repatriating looted art has become an everyday reality. In the last few months alone, U.S. museums returned two statues stolen from India, and Thailand made an official request for the return of 23 works in American collections. Although reasonable people can disagree about the right home for artifacts like the Elgin marbles, which Greece wants back from the British Museum, or the Koh-i-noor diamond, which India believes should be returned from the collection of crown jewels kept in the Tower of London, it’s safe to say that there is often a credible ethical claim to be made in favor of returning works to the nations from which they were once taken.
Not so for the rather astonishing claim that the Italian government is making for the return of the Victorious Youth bronze statue in the collection of the Getty Villa in Pacific Palisades, California. Italy’s highest court has just upheld its country’s claim, and the next step will be for Italy to seek the enforcement of its legal judgment in U.S. court.
To begin with, the Getty bronze isn’t Italian at all. It’s a Greek bronze, once thought to be by the sculptor Lysippus, a contemporary of Alexander the Great, but now considered by scholars to be perhaps a century or two later.
The statue is spectacularly well-preserved because it was lost at sea some time in antiquity. It was retrieved in 1964 from the Adriatic Sea by Italian fishermen operating from the ancient port of Fano.
The fishermen knew there was something, well, fishy, about their find. They hid the statue in a cabbage field, then sold it to a local art dealer who concealed it at the home of a local priest before selling to a collector in Milan. Soon after, someone spirited it out of the country without an export license. From a Munich dealer, the statue made its way via a Luxembourg corporation (possibly involving the king of Belgium) until the Getty bought it around 1977 for $3.95 million dollars.
The fishermen were right to be worried. The Italian government charged them with handling stolen property, and they were convicted.
But then Italy’s highest court overturned the ruling for two reasons. The court held that the prosecution had not proved that the statue was recovered in Italian waters, and it held that, because the statue was then in the wind, there was no way to demonstrate that it was of “artistic and archaeological interest.”
The first of these reasons matters for Italy’s current claim — because the argument that the Getty bronze belongs to Italy depends on the claim that it was recovered by an Italian ship, so that Italian law applies.
That is at least to some extent inconsistent with the 1970 ruling that absolved the fishermen partly because it could not be proved where they recovered the statute.
The government of Italy would, of course, like to claim that the statue is Italian no matter where it was found, because it was found by Italians who brought it back to Italy. But this seems like special pleading in light of the earlier court’s unwillingness to apply Italian criminal law to the fishermen based on the place of discovery.
The Getty isn’t going to give up the statue without a fight. In practice, it’s not clear whether a U.S. court will enforce the Italian judgment. That will depend on complicated principles governing the application of foreign judgments. The Getty is sure to argue that the Italian court judgment in favor of the Italian government is so flawed that it should not be applied to seize the statue.
Regardless of the law, there’s little ethical argument in favor of the Italian position. It had no historical tie to Italy. And it’s impossible to know for sure why it was on a boat near the Italian shore a couple of thousand years ago. Perhaps it had been sold to Romans — but perhaps it had been stolen from Greece in the first place.
It’s true that, when the Getty bought the work, it knew there was no official export license. But it also certainly knew the fishermen had been acquitted.
In any case, even if the Getty deserves criticism for acquiring art without a clear chain of title, it doesn’t follow that the government of Italy has the strongest claim to the statue.
The bottom line is that this Italian claim does a disservice to all legitimate claims of repatriation. Italy has no dearth of antiquities in its own country. It doesn’t need a Greek statue with no historical or cultural connection to Italy, or even to ancient Rome.
Here’s hoping the U.S. court looks skeptically on the Italian judgment — and that the claim doesn’t seriously damage to the repatriation claims of countries that were dispossessed of their treasures by actual theft.
Check out this helpful master’s thesis written by Simona Spagnoli at the Savannah College of Art and Design for details on this as well as the legal findings.
Lawyers will notice that there could in theory be two different legal regimes, one governing criminal law, the others governing the law of national ownership of archaeological discoveries. That's conceivable, of course, but it’s not very plausible given that the fishermen were charged with possession of stolen property, which must have depended on the theory that the state of Italy already owned the statue.
To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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