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After Chabad: Enforcement in Cultural Property Disputes

Written by  Giselle Barcia

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Cultural property is a unique form of property. It may be at once personal property and real property; it is non-fungible; it carries deep historical value; it educates; it is part tangible, part transient.  Cultural property is property that has acquired a special social status inextricably linked to a certain group’s identity. Its value to the group is unconnected to how outsiders might assess its economic worth.  If, as Hegel posited, property is an extension of personhood, then cultural property, for some, is an extension of nationhood.

Perhaps because of that unique status, specialized rules have developed, both domestically and internationally, to resolve some of the legal ambiguities inherent in “owning” cultural property. The United States, for example, has passed numerous laws protecting cultural property  and has joined treaties and participated in international conventions affirming cultural property’s special legal status.  Those rules focus primarily on conflict prevention and rely upon strong protections to preempt cultural property disputes. But specialized cultural property laws, in the United States and elsewhere, pay scant attention to the issues that arise when prevention fails. Specifically, those laws neglect to provide adequate guidelines for cultural property litigation and enforcement.

That legal lacuna underlies the recent developments in the cultural property case Agudas Chasidei Chabad v. Russian Federation, more commonly known as Chabad v. Russia.  This Comment addresses the problem of enforcement in international cultural property law, as manifested in Chabad v. Russia. The Chabad organization  brought litigation against Russia in U.S. federal court to recover the Schneerson Collection, held at the Russian State Library. The Collection consists of sacred Jewish texts on Chabad Chassidic tradition amassed by successive generations of Rebbes beginning in 1772.  The Collection has two components: the “Library,”  nationalized during the Bolshevik Revolution,  and the “Archive,”  plundered during the Second World War.  The Collection, then, is simultaneously a part of Russian heritage  and integral to the historical, religious, and ethnic identity of Chabad.  After a decades-long diplomatic campaign to recover ownership of the Collection,  Chabad challenged the legality of those two takings in U.S. federal court in 2006.  In July 2010, the Court of Appeals for the D.C. Circuit ruled in Chabad’s favor.