The Dilemma of the Right to Ownership of Underwater Cultural Heritage: The Case of the Getty Bronze

In disputes concerning objects of great artistic and historical value, such as underwater cultural heritage, there are two opposing positions which basically revolve around the central question of who owns the past: ‘cultural nationalism’ and ‘cultural internationalism’. Cultural internationalism encompasses the idea that cultural property is part of the common heritage of mankind and is not limited to the producing culture and thus supports free trading in cultural objects and their retention within the territory of the acquiring country by private collectors or museums. Its supporters generally believe in the free movement of cultural property and are more likely to favour buyers’ rights as good faith purchasers over the claims of the so called ‘source’ nations that an object has been illegally exported, and thus are not in favour of the enforcement of foreign nations’ laws on export controls. On the other hand, cultural nationalism centres on a more nationalistic approach, envisaging the concept that cultural property should be retained within the territory of their nation of origin, therefore its supporters legitimise the attempts made by States rich in historical artefacts to obtain the return of items over which they claim rightful ownership. The article describes a legal case which culminated in the forfeiture by the investigating judge of the Court of Pesaro of the famous “Victorious Athlete”, an Hellenistic bronze statue attributed to the Greek sculptor Lysippus, probably fished in the Adriatic Sea in 1964, and the subject of a harsh dispute between Italy and the United States of America, gave the Author the cue to meditate on the protection of archaeological goods and related instruments of international cooperation. In particular, the article addresses several issues which include the territorial scope of the Italian legislation on cultural heritage, private international law questions relating to the determination of the law governing the ownership on movables transferred abroad, recognition and enforcement of the confiscation order by the Courts of another State. Moreover, emphasis is given to issues arising from the application of international cooperation instruments on the protection of cultural heritage and their use in criminal matters.