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Journal of International Law, Vol. 80, No. 4 (Oct., 1986), pp. 831-853 Published by: American Society of International Law Stable URL: http://www.jstor.org/stable/2202065 . Accessed: 23/04/2012 19:16
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TWO WAYS OF THINKING ABOUT CULTURAL PROPERTY
ByJohnHenry Merryman* One way of thinkingabout cultural property-i.e., objects of artistic, archaeological, ethnologicalor historicalinterest'-is as componentsof a common human culture,whatevertheirplaces of originor presentlocation, independentof property rightsor nationaljurisdiction.That is the attitude
* SweitzerProfessorof Law and Cooperating Professorin the Departmentof Art,Stanford This article is part of a work in progresson "cultural property"undertakenwith University. the generous supportof theJohn Simon GuggenheimMemorial Foundation. I am gratefulto Professors Thomas Campbell, Detlev Ch. Dicke, AlbertE. Elsen, Marc Franklin,Pierre Lalive and P. J. O'Keefe for criticisms and suggestions.Errors of fact,judgment and taste are of course mine. of definition culturalproperty would have to include such objects and 1 Any comprehensive much more. Thus, the UNESCO Conventionon the Means of Prohibiting and Preventing the IllicitImport,Export and Transferof Ownershipof Cultural Propertyof 1970, infranote 6, definesculturalpropertyin Article 1 to include: (a) Rare collectionsand specimensof fauna, flora,mineralsand anatomy,and objects of paleontologicalinterest; to the of and military (b) property relating history, including history scienceand technology . and social history . .; (c) productsof archaeological excavations . or (d) elementsof artistic historicalmonumentsor archaeological siteswhich have been dismembered; (e) antiquitiesmore than one hundredyearsold, such as inscriptions, coins and engraved seals; (f) objects of ethnologicalinterest; of interest. . . (g) property artistic and incunabula, old books, documents and publicationsof special (h) rare manuscripts interest. . .; (i) postage, revenue and similarstamps. . . (j) archives,includingsound, photographicand cinematographic archives; (k) articlesof furniture more than one hundred yearsold and old musical instruments. In some nations,culturalobjects and environmental treasures(includingnaturaland artificial and panoramas) are treatedas landscapes and ecological areas, plus, in cities,urban structures related to each other. See T. ALIBRANDI & P. FERRI, I BENI CULTURALI E AMfundamentally BIENTALI (1985). Cf.UNESCO Convention forthe Protection the World Culturaland Natural of Heritage, Nov. 16, 1972, UNESCO Doc. 17/C/106 (1972). For a discussionof folkloreas Common culturalproperty, Glassie,Archaeology Folklore: Common see and Anxieties, Hopes,in HISTHINGS TORICAL ARCHAEOLOGY AND THE IMPORTANCE OF MATERIAL 23 (L. Ferguson ed. 1977). The entirequestionof the properdefinition culturalproperty legal and policypurposes of for is a large and unrulyone thatfortunately need not be pursued here. Works of art and archaeological and ethnologicalobjects surelyqualifyunder any definition;museums acquire and displaythem,scholarsstudythem,collectorscollect themand dealers sell them. National laws and international conventionsprovide for their preservationand regulate trade in them. A stronginternational consensussupportstheirinclusionin any definition culturalproperty. of 831
programand ideologysince 1954. (see Thinking aboutthe ElginMarbles. worlddivides the itself into source nationsand marketnations.the demand exceeds the supply.is not relevanthere. L.Conversely.like otherresources. O'KEEFE.thereare wealthycollectorsof foreignas well as national culturalobjects in mostsource nations.an unrestricted market will encourage the net export of culturalproperty. impliesthe attribution of nationalcharacter objects. Despite their enthusiasmfor other kinds of export trade.the supply of desirable cultural propertyexceeds the internaldemand. so it is rightto thinkof the Conventionas to some extenta UNESCO product. NATIONAL LEGAL CONTROL OF ILLICIT TRAFFIC IN CULTURAL PROPERTY 2 (UNESCO 1983). This way of thinking about cultural propertyis embodied in the Convention on the Means of and Preventing IllicitImport. Germany.though usefulforother purposes. Japan. 1970 (hereinafter 2 249 UNTS 240. The conferencethat produced Hague 1954 was called by UNESCO. Nations like Mexico. When.Switzerland ket nation encourages export fromsource nations.832 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 80 embodied in the Conventionforthe Protectionof Cultural Propertyin the Event of Armed Conflictof May 14.5Almost everynational government (the United States and Switzerlandare the principalexceptions)treatsculturalobjects withinitsjurisdictionas partsof a "national culturalheritage. the notion of "national culturalpatrimony"and relatedpolitical/symbolic ofcultural uses property. lackofthecultural expertise and organization to deal withculturalproperty a resource.France. PROTT & P. ' The reader willnot need to be remindedthata nationcan be botha source of and a market forcultural For property. Egypt. Anotherway of thinking about culturalpropertyis as part of a national culturalheritage.This givesnationsa special interest.it seems that there are and interesting severallevelsof motivation: romanticByronism Merryman. 83 MICH.3In source nations. REv.Exportand Transferof Ownthe Prohibiting of "UNESCO ershipof Cultural Property November 14. The differences between Hague 1954 and UNESCO 1970 thatare describedin thisarticleflowto some extent fromthe different subject mattersof the two Conventions.even thoughCanada and the United Statesare thoughtof primarily market as nations. the source nation is relativelypoor and the market nation wealthy. most source nationsvigorously oppose the export of culturalobjects.4Demand in the martions. as is often (but not always) the case. the 5 The question whynationsprohibit exportofcultural property an unexpectedly is complex one that I will treatin another article. In marketnations. 1880. to of and legitimizes nationalexportcontrolsand demands forthe "repatriation" As of culturalproperty. 3 L. example. On the surface." National laws prohibitor limitexport.Greece and India are obvious examples.independently theirlocationor ownership. a corollaryof thiswayof thinking.and international on agreementssupportthese nationalrestraints trade. that but exploitcultural property favorperpetuation and of the statusquo.but theyalso reflectthe changes thathave takenplace in UNESCO's membership. 1954 (hereinafter"Hague 1954"). 1903-05 (1985)). . and so on.2 whichculminatesa developmentin the international of war thatbegan law in the mid-l9th century. profitably. structure. as entrenched interests illegally. the Scandinaviannaand the United Statesare examples.to be managed and exploited. They are rich in culturalartifacts beyond any conceivable local use. include a thirdcategoryof "transitcountries" which.thereis a strong market abroad forworksof NorthAmerican Indian cultures.
Friedman 7Taylor. (3d ser.or ofa scientific such propertyis not to be considered public property .6 which is the keystoneof a networkof national and international in traffic smuggled and/or attemptsto deal withthe "illicit" international stolenculturalobjects.are based. As a general rule.a Greek historianof the 3d-2d centuryB. but it may be taxed or used when the public servicemay require it. U.or precise 35. 1972) [hereinafter cited as Friedman]. or foundationsfor the promotion of academies of learning knowledge. Classical worksof art.transcendingsuch disfor and explore theirimplications the I tinctions. the propertybelonging to churches.S. Lieber prepared a proposed "code of conduct by belligerentforcesin war" to apply to the conduct of the Union forces in the American Civil War. reprinted 10 ILM 289 (1971). in fortified in 6823 UNTS 231. of to establishments education.. the Instructions the Governance of Armies of the United States in the Field or Lieber Code contains 157 articles. the divergence flowsnaturallyfrom the diverse subject mattersof the two Conventions. be secured againstall avoidable injury. describe these differences policyand law of culturalproperty. LIEBER'S CODE AND THE LAW OF WAR (1983). REVUE (2me d'art desmonuments et objets fromdamage to Lieber. Issued by the Union command as General Orders No. was not the first argue forprotectionof culturalproperty Polybiusof Athens. See De Visscher.whetherpublic schools.C. cf R. in Foreword. 247 (1935).or other establishments an exclusivelycharitable character. collections. museumsof the finearts. characteror observatories. HARTIGAN. national and international HAGUE 1954 AND CULTURAL INTERNATIONALISM Hague 1954 is a direct descendant of the work of Francis Lieber. in definingguerrillawarfare. had assistedHenry Wager Halleck. General-in-Chief of the Union Armies.to hosof pitals. .one dealing withproin fromthe acts of belligerents timeof war. of course. and meaningsand embody different somethe term "protection" different what dissonantsets of values.La Protection frequently DE DROIT INTERNATIONAL ET DE .scientific such as astronomicaltelescopes. for 1863.At Halleck's request. LtGISLATION COMPAR?E 16 historiques partie). But the differences outlook that are of interesthere are fundamental. libraries. 100 on April 24. at xv (L. des internationale quoted as the earliestsuch advocate. In part.Articles34-36 deal with and provide: protectionof culturalproperty 34.) 246. the tectionof culturalproperty in in other with internationaltraffic cultural objects. ed. THE LAW OF WAR: A DOCUMENTARY HISTORY. as and republished De Visscher."7 Lieber. translated 1 Monuments. DEP'T OF STATE. "the man who shaped and laid the cornerstoneon which the laws of war.as well as hospitals. as we at now findthem.universities. is or seizure by belligerents.even when theyare contained places whilstbesieged or bombarded.must instruments.1986] THINKING ABOUT CULTURAL PROPERTY 833 1970"). theygive While both Conventionspurportto protectculturalproperty. Docuof of International Protection Works Artand Historic MENTS AND STATE PAPERS 821. 823 (1949) (quoting Polybius). a Germanemigreprofessor Columbia College in-New York.
539.of whichArticle56 deals withthe protectionof culturalpropertyin similarterms. of a total of 56 articles. In no case shall theybe sold or givenaway. The ultimate ownershipis to be settledby the ensuing treatyof peace. July29. worksof art or science.B.Article8. another importantconferencewas convened at The Hague. " For the Convention.Oct.the ruler of the conquering state or nation may order them to be seized and removed forthe benefitof the said nation. 2277. 1899) and a set of Regulations Respectingthe Laws and Customsof War on Land in 60 articles. whichpro8 Friedman. shall be prosecuted by the competentauthorities. 1907. see 32 Stat.or wilfuldamage to.supra note 7. 36-37 (J. such establishments. arts and sciences. in 12 For the Convention.states: of The property parishes(communes). libraries.ifcaptured by the armies of the United States. at an international conferenceof 15 statescalled by the Russian Government and held in Brussels in 1874. education. Scott ed. again at the initiative of the Russian Government. 10 RESOLUTIONS OF THE INSTITUTE OF INTERNATIONAL LAW 9 Friedman. Everyseizure. If such works of art.destruction of.834 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol.collections.supra note 7. of Russia.or establishments devoted to religion. historical or monuments. at 323.11 in Such provisionsappear withincreasingfrequency the presentcentury. Thus. again. . inIts fluencecan be traced througha number of succeeding efforts. of whichArticle56 provides in similartermsfor the protectionof cultural The same 1907 conferenceproduced the ConventionConcernproperty. HARTIGAN. see 36 Stat.a conferenceof 26 nations was convened at The Hague. TS No. R.or wantonlydestroyedor injured. supra note 7. at 165. reprinted Friedman. includingtheConventionwithRespectto theLaws and Customs of War on Land (Hague II. attended by 44 nations.although belonging to the State. 18. In 1907. supra note 7. 80 36.' In 1880 the prestigiousInstituteof InternationalLaw (an organizationof scholarsof international law) included a similarprovision(Article56) in its "Manual of the Laws and Customsof War.nor shall theyever be privately appropriated. at 51-52. the "Declaration of Brussels" was promulgated (but never adopted as an international conventionbecause of the resistance of Great Britain).or instruments belonging to a hostile nation or governmentcan be removed without injury. 1916).'2 ing Bombardmentby Naval Forces in Time of War (Hague IX). reprinted Friedman. at 234.shallbe treatedas privateproperty. 1803. The Convention on Laws and Customs of War on Land (Hague IV. This important conferenceproduced a numberof international agreements."'0 In 1899. 403. 1907) adopted at that conference has a set of appended RegulationsRespectingthe Laws and Customs of War on Land. at 195.8 The Lieber Code was the first attemptto statea comprehensivebody of principlesgoverningthe conduct of belligerentsin enemy territory.charity. in supra note 7. TS No. at the initiative the United States(PresidentTheodore Roosevelt) of and. 1899.
DOCUMENTS AND STATE PAPERS 859 (1949). 49 Stat.36 Stat. Two major legal events then occurred: the Nuremberg Trials and the promulgation. and related conventionswere the governinggeneral on international legislation theconductof belligerents untilthe end of World War II. 14 THE INTERNATIONAL PROTECTION OF CULTURAL INSTITUTIONS AND TREASURES 16 1.Articles 25 and 26 provide forthe protectionof culturalproperty. culturalobjects were protected. United the Statesand India." "art" and "science. See E. the governingrules concerning protectionof cultural property againstbelligerent acts had clearlybecome inadequate.S. itis now. On the whole." and by the offensesagainst cultural property deliberately and systematically committed the Nazis. DEP'T OF STATE. however.under the auspices of the League of Nations.Individualsresponsibleforoffenses against cultural were to be punishedbytheauthorities theirown nations. 5 Apr. 542.In the 1930s. protectionof culturalproperty the was merelyone among manytopics. By the end by of World War II. where he died in 1947.one of the principalaccused Nazis at the Nuremberg Trials. overridingconcession to military necessity. by changes in the technology. 3267.international interest turnedto thepreparationof a conventiondealing solelywiththeprotection cultural of propertyin time of war. 15.U.Although the language varied fromone to of another.of Hague 1954. His draftof a proposed conventionand his design for a banner-"the Banner of Peace" (reproduced withthe Treaty in TS No. poet and activist behalfof culturalpreservation on who also lived in Finland. Roerich was a Russian painter. of Greece and the Netherlands. Friedman. the United States. In 1935 the 21 American nationspromulgateda and Scientific Treaty on the Protectionof Artistic Institutions and Monuments. 1907.Britain.forall practical but purposes. TS No. these League efforts were quicklyovertakenby the eventsof World War II. 2351. assignmentthat it ruthlessly. (Sofia 1978).now generallyreferredto as the Roerich Pact. of property The Lieber Code and itsprogenyall dealt comprehensively withthe obligationsof belligerents. 167 LNTS 279. ALEXANDROV.'4 Hague IV. 899. an vora18."'" In 1923 anotherHague conferenceproduced the Hague Rules ofAir Warfare (whichwereneveradopted bythepowersconcerned).1986] THINKING ABOUT CULTURAL PROPERTY 835 vides in Article 5 for the protectionof "historicmonuments.'5 As the first internationalconventionentirely devoted to the protectionof culturalproperty.In 1939 the Governments Belgium. THE ROERICH PACT AND Oct. 1907. at 441.TS No. was among other thingshead of the infamousEinsatzstab(Special Staff)Rosenberg. AlfredRosenberg. superseded.supra note 7.'6 Like the Roerich Pact. tacticsand strategy warfare of and the new concept of "total war.Spain. The Einsatzstabwas charged withlooting German-occupied countriesof culturalproperty. 1935. . undertheauspicesof the United NationsEducational.the basic structure protectionremained the same: subject to an which will be discussed below. these conventionsmerelyrestatedearlier provisions concerningcultural property. thisdocumentis historically important. 899)-were in large part adopted by the parties to the convention.Scientific Cultural and Organization. issued a Draft Declaration and a Draft InternationalConvention for the Protectionof Monumentsand Works of Art in Time of War.
all necessarysteps to prosecute and impose penal or disciplinary sanctionsupon those persons. as elsewherein the Nuremberg Trials. including highly placedofficers. MULLINS. Treaty The in of Versailles provided Article thatGermans 228 accusedof warcrimes wouldbe triedby military tribunals thevictorious of Allies. 80 ciouslyand efficiently executed. at 777. THE NUREMBERG had long See TRIALS IN INTERNATIONAL LAW 17ff. wereeventually and convicted. (Thosewho eventuallyimprisoned immediately "escaped. of The language of the Preamble is forthisreason alone memorable: Being convincedthatdamage to culturalproperty belongingto any people whatsoevermeans damage to the culturalheritageof all mankind.MERRYMAN & A. principle individuals the that accused (other of kinds warcrimes of) couldbe tried bytheoffended governments beenaccepted before. affirmed Nuremberg. listof 896 alleged a warcriminals. in Article 28: "The at High ContractingParties undertaketo take. THE LEIPZIG TRIALS and of see (1921). ofwhatever nationality.In pursuance this of provision.nations thatacquire personal jurisdiction personsaccused of Hague 1954 violations of to trythem. The Lieber Code and its progeny had a different basis: such offenses violatedinternational law. A more significant noveltyof Hague 1954. ELSEN. The innovationhere. they turned CULTURAL PROPERTY: 18 1-43ffi (1979-).is thatit providesa rationaleforthe international protection culturalproperty. the first tection cultural of property.836 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. indeed to oblige. however. in the applying international The law. . S. withinthe framework their of ordinarycriminal jurisdiction. WOETZEL. ranging from in 4 few were monthstoyears prison. was thatother nationsimposed responsibility an individual on official the offending of belligerent power foracts againstculturalproperty committedin its name.'7Rosenberg was found guiltyof these (and manyother) offenses and was hanged. appears to incorporate principle individual the of internationalresponsibility. (1960). Rosenberg's indictment and the evidence introducedat his trial detailed his (and the Einsatzstab's)offensesagainst culturalproperty. 17See materials in collected J. Alliesprovided drastically a reducedlistof 45 names. since each people makes its contributionto the culture of the world.ifat all. Six tried received a they light sentences. who commitor order to be committed breach of the presentConvention" a (emphasis added).") Fora contemporary account evaluation thetrials. reported theAllies to that there wouldbe an insurrection ifthey tried deliver names thelist.'8 universalconventionto deal solely with the proHague 1954. but offending personnelwere to be disciplined. supra note7. In addition. submitted theAllieswith demand was by the that be overfortrial. This languageseemsto authorize. It waseventually agreedthat Germans the wouldconduct the in trials their ownhighcourt. army to the on and leaders they said would resume the wariftheAllies pressed matter. WILLIAMS. Reichsgericht Leipzig. R. and theGermans agreedto try12 of them. LAW. ETHICS AND THE VISUAL ARTS A COMPARATIVE STUDY 23-29 (1978). C. the Friedman. German The Germans public. there recent was relevant evidence that trials accusedwarcriminals their of by ownnational courts wereineffectual. by theirown governments. THE INTERNATIONAL AND NATIONAL PROTECTION OF MOVABLE The German cabinet strenuously citing opposition the the of objectedto thedemand. In fact.
IV. theyare a part of "the culturalheritageof all mankind. to the Elgin marbles.'9 a charter for cultural for withprofoundimplications law and policyconcerning internationalism." It followsthatpeople who are not Greek and availability or Britishhave an interestin their preservation. 21 Two colleagues have suggestedthat one can distinguish culturalobjects of merelylocal. as another.These matters discussedbelow. As the smog of Athenseats away the marble fabricof the Parthenon. theinternational appears to apply. Neither of these objects has intrinsic portance of each seems to be entirelyspecificto the town in Brazil or to the United States. . institutions .their expression in innovation.forexample. 26.8.a greateventin Westernhistory.Thus. the a Preamble states: "Recalling that cultural propertyconstitutes basic element of civilization policy of exchanges among cultural and nationalculture. Hague 1954 specifically international importance. Would the rest of the world be culturallyimpoverishedby the destructionof one to either?Arguablynot.leaving only this bronze as an example of an important formative stage in his career. which has Hague 1954 is a significant is been echoed in later internationalinstruments. as integrity and distribution/access interestin culturalproperty.. The quoted language. would . is a symbolof the Does it reallyringonlyforAmericans? AmericanRevolution.and the currentproposals to return themto Athens become the businessof othersbesides Greeks and Britons. . at 1916-21. .B.integrity The perennial debate about the proprietyof for enjoymentand study.as one example. value.it does not seem unreasonableto suppose thatsome objects reallyhave littleor no importancebeyond of local or national borders: the bronze effigy an obscure politicianexecuted by a mediocre artist merelylocal reputation of standingin a parkin a provincialtownin Brazil.. equating as "culturalproperty belongingto any people whatsoever"with"the culturalheritageof all manto kind" because "each people makes its contribution the culture of the world. nationalor regionalinterest from thoseoftruly rejectsany such distinction. . lead to a better use of the internationalcommunity'scultural (emphasis supplied)." Still." 20 For a discussionof the marbles and of preservation.20 their removal from Greece by Elgin. but there are two major difficulties: is that the effort distinguish entersa no-man's-land thatis shrouded significance objects of local fromthose of international in uncertainty and strewnwithland mines. UNESCO Doc. the quoted provisionfromthe Preamble makes clear. respectively. 1976. The LibertyBell.all of are mankindloses something irreplaceable. and the culturalimthe LibertyBell. assume now mayunexpectedly The otherproblemis thatwhatseemsof local and minorinterest major international importance." and "Considering that a systematic . .2' concession to nationalism:like its Hague 1954 contains one significant by predecessors.or the artistmay have gone on to greater things.1986] THINKING ABOUT CULTURAL PROPERTY 837 of Consideringthatthe preservation the culturalheritageis of great importancefor all peoples of the world and that it is importantthat protection. though usually combined with insistenceon the centralityof national interests. for example. ."As stated in Articles 14 and 15 of the Lieber Code: "military 19 Such echoes can be found in the language of the UNESCO RecommendationConcerning the InternationalExchange of Cultural Propertyof Nov.. Article 2 of the recheritagewhich thesumofall thenationalheritages" is statement: ommendationcontainsa lessnationalistic "Bearing in mindthatall culturalproperty formspart of the common heritageof mankind. The principle of tradein and repatriation culturalproperty.. see Merryman.it limitsthe protectionof culturalproperty the doctrineof necessity. thisheritageshould receive international While it seems clear that such considerationsunderlay the protectionof cultural propertyin Lieber's code and its successors.The minor politicianmay be reevaluated by scholarship. supra the three main categories of international note 5.
at 161. One is that the concept of of military and the circumstances its use in the necessity so indefinite is field so fluid that "necessity" too quicklyand easily shades into "convenience. 24 Nahlik. of consistsin the necessity those measureswhichare indispensablefor accordingto the modern securingtheends of war."25 Military fensesused by accused war criminalsafterWorld Wars I and IL. 1943: "[T]he phrase'military to is sometimes used where it would be more truthful speak of military convenience or even of personal convenience."has not itself necessity Pact.supra note 7. describesthe workof the Commission. General Eisenhower on for of issuedclear directions the preservation culturalproperty December supra note 7." It is ironic that exception and.29 BRIT. Militarynecessity. at 48. COURS 61. at 128ff. I do not want it to cloak was one of the standard denecessity slacknessor indifference. .and whichare lawful law and usages of war. 442 (1952). 87 (1967 I).La Protection arme'. which insistedon the military plus en mesurede signeret de ratifier argued thatwithoutit "plusieurspaysne se trouveraient thatthe earlier Roerich Hague 1954. 26 Dunbar. describesthe debates and statesthatthe United States.and ArchivesSection (MFA&A). at 131.military necessityimperatively can justifythe destructionof culturalpropertyotherwiseprotectedby the Convention. 22 Article4(2) providesthatthe obligation different. It is also significant ratified la Convention.in practice. necessity. The Report MONUMENTS IN WAR AREAS. 7 in favorand 14 abstentions. .838 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. Y. Hague 1954 is not greatly to respect cultural property"may be waived . understood by modern civilized nations. . Military Trials. Friedman. and the treatment culturalproperty in afterhostilities World War II. REPORT 48 (1946) [hereinafter .fieldcommanders is and can be expected to place other values higherthan culturalpreservation to translatetheminto "military necessity. the fieldoperationsof the Monuments. 80 as 14. Belgium. Militarynecessity. supra note 15. Romania.B.contained no military necessityclause was 20 clause. Necessity War Crimes in 25 AMERICAN COMMISSION FOR THE PROTECTION AND SALVAGE OF ARTISTIC AND HISTORIC cited as REPORT].id. necessity the United States. opposed. 15. 23 22 created in 1943. duringand of Fine Arts. HARTIGAN. to which the United States was a party. The decisive vote on the Soviet motion to delete the military Id.whose originhas been attributed Prussianmilitarismde"la celebre conception prussiennede la Kriegsraison"23-was strongly bated at the conferencethatproduced Hague 1954 and was retained by a are divided vote." The problem was anticipatedby General Eisenhowerin a statement necessity' to the Allied forceson December 29. INT'L L."The conduct of the Allied forces in Europe in 1943-1945 provides various examples. 120 RECUEIL DES des culturels cas de conflit en internationale biens Nahlik. Ecuador and Spain were among those that argued that such an exception was "incompatibleavec l'espritet les principesessentielsde la Convention.Great Britain whilethe USSR. R. withGreat Britain. on and Turkey insisted includingan exceptionformilitary Greece.26 A related but more subtledifficulty that.24The criticisms of several kinds. in cases where military necessity requires such a waiver. . to This principle. allows of all destructionof property." In short.
our in Inevitably. That is an acceptedprinciple. at 102. at 67. to his the of So. many so In as casesthemonuments be spared can without any detriment operational to needs. suchcases. one of the oldest and most revered and honored sites in Europe. supra note25. and 11.29 27 Todaywe are fighting a country in which contributedgreat has a deal to ourcultural a country inmonuments inheritance.library. . The monasticbuildings. rich which their by creation helped nowintheir and old age illustrate growth thecivilization the of which ours. 8.1986] THINKING ABOUT CULTURAL PROPERTY 839 and 29. be In the of and commanders preserve will centers objects historical cultural and of and significance. 1943 in Italy. there were enemy observationposts and mortarand other defensive positionsall over the mountain around the abbey. were repicturegallery. wheremilitary necessity commanders ordertherequired dictates. 29 Id. thepathofouradvance be found will historical monuments cultural and centers which symbolize theworld that are fighting to all we to preserve. possible. as If we haveto choosebetween a destroyingfamous and building sacrificing own our men.Nothing standagainst argument military can the of necessity. Butthere many are in circumstanceswhich damageand destruction notnecessary are and cannot justified. thephrase"military But is necessity" sometimes usedwhere would more it be truthful speak military to of convenience evenofpersonal or I convenience. Of the seventeenth-century church almost nothingremained.28 General Eisenhower'sreferenceto the Abbey of Monte Cassino. as the Alliesbegan to sweep across northernEurope. 28 we our Shortly willbe fighting wayacross Continent Europeinbattles the of designed to preserve civilization. Itistheresponsibility ofevery commander protect respect to and these symbols whenever In somecircumstances success themilitary the of operation maybe prejudiced our in reluctance destroy to these revered objects. In any case these defensivepositionsand the abbey were blasted by artillery and aerial bombardments and the abbey was verylargelydestroyedin attackson February 5. 1944. isnotalways clear-cut that. culminating the aerial assault of in February 15. is unfortunate and revealing.through exercise restraint discipline.do notwantitto cloakslackness indifference. lives our menare paramount. then men's our lives count infinitely andthebuildings more must Butthechoice go.as at Cassino. or REPORT.but therewas no military necessityof doing so.The Alliesdestroyed Monte Cassino. and to the Allied armiesthe towering wallscrowningthe mountainmaywellhave grown into a symbolof the opposition against a victoriousadvance. where enemy the relied on ouremotional attachments shield defense. As the Report the American Commissionfor the of Protectionand Salvage of Artistic and Historic Monumentsin War Areas states: Although the German High Command had apparentlyissued orders thattroopswere not to enter the monastery under any circumstances. Id.We are boundto respect is thosemonuments faras warallows.and all structures duced to rubble. Then.27 on May 26. may actioneven it though involves destruction somehonored to site. at 48.
MarginalComments. note17. nor should I hesitateforan instant(were such a decision ever open to me) to save St. VONNEGUT.A military of cessityequation that routinelyvalues the possibility loss of life higher of than the certainty destructionof culturalpropertynecessarilyproduces that kind of result. . It is to my value fall. theygenerally agree withSir state that human lives are more important.of more importancethan human lives . . as such. Works of major artistic category. I should assuredlybe prepared to be shot againsta wall if I were certain that by such a sacrificeI could preserve the Giotto frescoes. importantthan the replaceable. and the loss of even the most valued which human lifeis ultimately disastrousthanthe lossof something less in no circumstances can ever be created again. THE DESTRUCTION OF DRESDEN (1963).however. 1944.reprinted full inJ. OR THE CHILDREN'S CRUSADE (1969). IRVING.. but when forced to choose.You can bomb thecathedralwithout your men or you can order some of them to enter the cathedral and find and removethespotter. Feb.An enemy artillery spotterin one of the towersis directingfireagainst you and your endangering menand mustbe removed. 25. in SPECTATOR. supra 31 Notto mention lives. the equation tiltsfurtheragainst preservation.were I a militarycommander. necessity is arguing thatmilitary of a relic of an age that treated aggressivewar as a legitimateinstrument " SirHaroldNicolson. To use a classroomexample.Only a minority Harold Nicolson: I am not among thosewho feel thatreligioussitesare. ELSEN. into a completelydifferent mind absolutelydesirable that such works should be preserved from destruction. . Mark's even if I were aware that by so doing I should bring death to my sons.at 1-85ff MERRYMAN & A. 80 The choice between saving human lives and saving irreplaceable monumentsis notan easyone. necessity" justifiedsaturationbombing of townscontainingirre"military and yards placeable culturaltreasuresand "precision" bombingof factories adjacent to great monumentsof human achievement. cf K. My attitude would be governed by a The irreplaceable is more principlewhich is surelyincontrovertible. loss enormous ofnoncombatant SeeD.to reduce some purelyhistoricalbuildingto rubble if I feltthat by doing so I could gain a tacticaladvantage or diminish the danger to which my men were exposed.One or more of the men would in thatcase probably necessity"? be killed. We did enormous damage to irreplaceable works.suppose you command of a companyof soldiersin the vicinity the cathedralof Chartres.In World War II.3' A thirdobjection is more fundamental. . Do you bomb the cathedral?Is thisa case of "military Studentstryto evade the issue. nor should I hesitate. SLAUGHTERHOUSE-FIVE. .840 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol.Where the culturalpropertyin question belongs to the enemy.even if their preservationentails the sacrificeof human lives.30 The Monte Cassino example and many others described in the Report illustrateboth the complexityof the field commander's decision and the depressing regularitywith which "honored objects" and "revered sites" were destroyed as the Allied armies advanced and the Allied air forces nebombed.guaranteeingwidespread damage and destruction. .
Sales No.are the common heritageof mankind. M. BAKER & H.among others. the law One is the cosmopolitannotion of a general interestin cultural property ("the culturalheritageof all mankind"). should a great culturalmonumentbe legallysacrificedto the ends of war? What does it say about our scale of values when we place military objectives above the preservation irreplaceableculturalmonuments?32 of This criticism obviouslygains force from the present century'soutlawing of aggressive war33 and fromacceptance of the idea thatculturalproperty belongs to all mankind. Anotheris the notionof individual of G. 46 Stat. reprinted inUNITED NATIONS. REV. 3' There is growinginternational acceptance of a similarinterestof "all mankind" in the in physicalenvironment. Despite itsdeferenceto military necessity. see D. 1984). Dec. paragraph4. AND CONFER- of the proposed applicationof the "common heritage" concept to Antarctica(also opposed by IN A RESOURCE the United States). TS No. Cf UN Conventionon the Law of the Sea. the illegality of aggressivewar has been generallyaccepted among nations.apart fromany national interest. 6. INTERNATIONAL CONFERENCE ON MILITARY TRIALS. Art. L.1986] THINKING ABOUT CULTURAL PROPERTY 841 nationalpolicy-an age evoked by suchtermsas jus ad bellum. TheDoctrine of as in ofMilitary 89 Necessity theFederalCourts.Article2. BEST. 1928. and compare the views IN WARFARE passim (1980). Why.ifmilitary of can the guaranteed necessity justify denialor limitation theconstitutionally law rights individuals. raisond'etat. space and in the seabed. 34Still. . openedfor signature 10. 2343.to accede to the LOS Convention. 149ff. THE LAW OF THE SEA: UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (UN Pub. it sometimesdoes in Americanconstitutional (Levine. 1982. " Beginningwiththe Kellogg-BriandPact of Aug. refusal. DEP'T OF STATE PUB." and in Article 136 that the "Area and its resources are the common heritage of mankind. AKEHURST. SHAPLEY. 94 LNTS 57. No. Charter majorwar criminals Nurembergwas thattheyinitiated at of the InternationalMilitaryTribunal. 796.V. 2 INTERNATIONAL 1 EUROPEAN AND BRITISH COMMONWEALTH 423 (1949). Hague 1954 expressesseveral important propositions affecting international of culturalproperty.supranote 23. as well as its resources. with those ofJ. ORGANIZATION U. A MODERN INTRODUCTION TO INTERNATIONAL LAW 281-82 (5th ed. Kriegsbrauch.the concession to military necessityseems inconsistent with the premisesof Hague 1954: "the cultural heritage of all mankind" is put at the mercyof the relatively of parochial interests certainbelligerents. at 128ff. raisonde guerre.the matterwas vigorouslydiscussed and the concessionto nationalismstrongly opposed by major nations at the conference. and followedbythe United NationsCharter.5). 380.and so on.One of the charges against the and waged warsof aggression. CROCKER.83. THE SEVENTH CONTINENT: ANTARCTICA AGE 160 (1985). E. which provides in the Preamble that"the area of the sea-bed and the ocean floorand the subsoil thereof .35 A second is thatculturalproperty has special importance. 27.thisis perhaps unsurprising and may be unavoidable. perhaps it is not surprising of thatwe permitit to justifythe destruction culturaltreasures. For a discussion ENCE SERIES.S. justifying special legal measuresto ensureitspreservation. THE WARFARE CONCERNING THE RIGHTS AND DUTIES OF BELLIGERENTS 209-13 (1919). MIL.S. .In an international conventionto whichnational statesare parties.34 Finally." Disagreement with the implications thisconcept foraccess to and managementof deep sea resourceswas a principal of reason for the U. HUMANITY LAWS OF LAND 32See the discussionof the debate in Nahlik. Still. Kriegsraison. 3 (1980)).not merelyto the nation of its situsor to the belligerents. .such criticsask.
36 and second of these propositionsare expressed in a variety otherinternational of acts and agreements (includingUNESCO 1970 and itsclusterof related eventsand documents. independently nations of and international arrangements.Hague 1954 exertsan influence thatextends beyond the obligationsimposed on and accepted by itsparties. For example. and the UNESCO Recommendationforthe Protectionof Movable CulturalProperty 1978. id. 119..38 threedraftinternational conventions prepared by the League of Nations in 1933. the courts that ordinarily try criminaloffenses-should be used. DECEMBER 326. include the Conventionon the Protectionof Archaeological. id. at 208 (1934).It is a piece of international legislationthat exemplifiesan influential way of thinking about culturalproperty. 19. ratherthan military tribunalsor special tribunalscreated for the purpose.ETS No.842 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. MONTEVIDEO.at 370.Like all major internationalconventions.the experiences of World Wars I and II and the NurembergTrials. The thirdand fourthpropositions.S.e. whichI willcall "cultural internationalism. theydo not at presentapply to the peacein time traffic smuggled or stolen cultural property.S. Later relevant materials . the last of which was entitled Draft InternationalConvention for the Protection of National Collections of Art and History. limitedto controlling conductof belligerents not the in timeof war or civilconflict.exemplifiedby UNESCO 1970. are more closelytied to the internationallaw of war. the SeventhInternational of Conferenceof AmericanStatesof 1933. In 1985 of the Council of Europe promulgatedthe European Conventionon OffencesRelatingto Cultural Property. 1933. which adds penal to the more usual civil enforcementof national cultural property retention laws. 9 Al1 three are set out in 1 U. DOCUMENTS AND STATE PAPERS 865 (1949).40 38 Hague 1954 also provides that the ordinarycourts-i. UNESCO 1970 AND CULTURAL NATIONALISM The forerunners the UNESCO 1970 Conventioninclude: Resolution of XIV. "' "Supranationalism. whichwill be discussed below). however.Import dationon the Means of Prohibiting the and Transferof Ownershipof Cultural Propertyof 1964. U. 80 responsibility offenses for againstculturalproperty. Protectionof Movable Monuments. THE PROTECTION OF MOVABLE CULTURAL PROPERTY: COMPENDIUM OF LEGISLATIVE TEXTS 382 (1984) [hereinafter cited as COMPENDIUM]. 1936 and 1939.""meta-nationalism" or "cosmopolitanism"might. One reason for the Germans' resistanceto the provisionin the Treaty of Versailles that alleged German war criminalsbe tried by the Allies was that Allied military tribunalswould trythem. is Use of "internationalism" thissense. One can thereforetreatthem as principles of generalapplicability. in however.The fourthis the principle thatjurisdictionto tryoffenses againstculturalpropertyis not limited of The first to the government the offender."37 We now examine another way.at 386.strictly speaking.has become common enough and willdo. DEP'T OF STATE.Historical. DEP'T OF STATE CONFERENCE SERIES No. 38 REPORT OF THE DELEGATES OF THE UNITED STATES OF AMERICA TO THE SEVENTH INTERNATIONAL CONFERENCE OF AMERICAN STATES. the partyin interest. however.and Artistic Heritage of the Amercian Nations (Conventionof San Salvador) of 1976. 40 1 UNESCO." since the idea is that humanity.39 and the UNESCO Recommenand Preventing IllicitExport. be better than "internationalism. URUGUAY. the Hague 1899 and 1907 Conventions.growingout of the Lieber Code.
of which the core is the following:"Considering one of the basic elements of civilization that cultural propertyconstitutes and nationalculture. In general. the UNESCO RecommendationConof Endangeredby Publicor PrivateWorksof 1968. J. Scandinaviannationsand Switzerland. Japan.Professor legislationpursuantto becoming a party. nationshave become partiesto UNESCO 1970. UNESCO cerningthe Preservation Property Doc. 66. at 365. are parties. Of 58 as these.the Netherlands. Both it and the site have that been deprived of valuable archaeological and ethnologicalinformation would have been preservedhad the removal been properlysupervisedand documented. May 6.43 "' UNESCO 1970 imposes other obligationson the parties:to take steps to ensure the protectionof theirown cultural propertyby settingup appropriate agencies. and thatitstruevalue can be appreciatedonlyin relation and its setting" to thefullest regarding origin. ETS No.or had the stele remained in place. The reason for this disparitylies in the Convention's purpose: to restrainthe flowof cultural propertyfromsource nations by limitingits importationby marketnations.listingworksof major cultural importance. University Sydney. and the Federal Republic of Germanyto be "activelyinvestigating notion. 5. 1986 fromProfessorP. France.1986] THINKING ABOUT CULTURAL PROPERTY 843 The basic purpose of UNESCO 1970.is to inhibit objects. as its titleindicates. 42 As this is written. the to UNESCO 1970.export and transfer ownership" of culturalproperty(Article 2). and agree to preventthe importation such objects and facilitate theirreturnto source nations(Articles7.The principal less significant the international in discussionand activity on effort to enlistthe marketnationsto supportthe restrictions exportadopted by the source is nations. to agree thattradein culturalobjectsexportedcontrary the law of the nation of of originis "illicit" (Article3).onlytwo could be classified major marketnations:the United States and Canada.these provisionsare much under the Convention. many of them in the Third World. and the European Conventionon the Protectionof the Archaeological Heritage. 22. prohibitall export as of culturalproperty. FINAL ACT OF THE INTERNATIONAL CONFERENCE ON EXCAVATIONS 1ff (1937). distinction to them is not significant. history traditional possible information clandestineexcavations (emphasisadded).41 As of thiswriting. A Mayan stele torn from an undeveloped.in effect. the Germany.such as Belgium. . are parties. however. however. CFS.supervising education and publicity (Arts. COMPENDIUM.to the writer. a marketnation commitsitself forgothe By ratifying further importation some kinds of culturalpropertyfromthose source of nationsthatare parties. It is true that the Convention in applies only to the "illicit" internationaltraffic cultural property.68/vi. 1969. and removals are almost always undocumented. enacting laws and excavationsand through regulations. supra note 40.42Most source nations. 9 and 13). undocumented site in thejungle of Belize and smuggled to Switzerlandto be sold becomes anonymous. O'Keefe. 12 and 14). None of the other marketnations.as O'Keefe also reportsthatDenmark is introducing is Australia.but since many source nations have policies that. The concernis thatunauthorized. France is reported to be takingthe necessarysteps to join UNESCO the 1970. 14x/AFSR." Letter of of Apr.Whyshould it do so? The Preamble to the Convention sets out a series of more or less related propositionsthatstate the case for international action.The partiesagree to oppose the"illicit"international tradein cultural of the "impoverishment the culturalheritage" of a nation through "illicit of import. " This concern is more fullydeveloped in LEAGUE OF NATIONS.
" The emphasis on national retentionof cultural propertyis legitimized throughoutUNESCO 1970 by use of the term "illicit. law and policyhave Recent international discussionsof culturalproperty been carriedon in a special language.the notionthattheyare obligatedby UNESCO 1970 does not arise. 1972).jewelry. . clandestineexcavationand export. 27 UST 37. dialogue is about "protection"of culturalproperty-i." which is given an as expansivemeaning. the quoted language of the Preamble mightbe paraphrased as follows:"Considering thatit is rightfor and to every State to retain cultural propertyexistingwithinits territory preventitstheft. of the Culturaland Natural Heritage of 1972." An alternativereading. 17/C/I 07 (Nov.and the verylarge body of artworks and artifacts (e.Article3 defines "illicit"anytradein culturalproperty to that "is effected contrary the provisionsadopted under thisConvention by the States Partiesthereto.. manuscripts.) that are movable withoutsignificant of information. proportionof the total trade in stolen and illegallyexported culturalobjects.and againstthe dangers of theft.That is indeed the prevailinginterpretation among source nations.those remainingin their sites that have been fully documented. paintings. .ceramics." Thus." This intention made is clear in Article 2 of the Convention. illegalexport. One of itscharacteristics a tendency is towardeuphemism.is that these wordsjustifynational retentionof cultural property. if Guatemala were to adopt legislation and administrative practicesthat. protection against removal. Instead. 1037 UNTS 151. anotherclause of the Preamble states:"Considering thatit is incumbent upon everyState to protectthe culturalproperty existing withinitsterritory clandestineexcavation. loss obviouslyraise no such problem. the of culturalproperty. 80 This concernwith"de-contextualization" applies withparticularforceto undocumentedarchaeological objects. exportand transfer ownis ershipof culturalproperty one of the main causes of the impoverishment of the culturalheritageof the countriesof originof such property.which states: "The States Parties to thisConventionrecognizethatthe illicit of import.at a National Level.g. then the export of anypre-Columbian object fromGuatemala would be "illicit" under UNESCO 1970.This feature in of UNESCO 1970 has been called a "blank check" by interests market 4 Examples of international instruments clearlydo seek to imposeobligationson nations that to protectculturalproperty are: UNESCO RecommendationConcerningthe Protection. .. etc. however. TIAS No. and UNESCO Convention for the Protectionof the World Cultural and Natural Heritage of 1972. weapons. 8226. Several sourcenationsthatare partiesto UNESCO 1970 have such laws.. and Article5. such as workspreviously removed fromtheirsites.Thus.e. Others.844 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. coins. For example. When interpretedin this way. paragraphs(c) and (d) of the Conventionare consistent with thatinterpretation. UNESCO 1970 is largely about nationalretention but the term "retention" is seldom used. it has done.in effect." One wayto read thislanguage is thatitimposesan obligation on source nationsto care for culturalpropertyin theirnational territories. 15. sculptures. prohibitedthe export of all preas Columbian artifacts. The quoted preambular provision applies in practice to only a small.though extremelyimportant. UNESCO Doc.
worksthat now reside abroad in museums there (the resultof plunder. collectorsand museumsin marketnationshave no opportunity participatein that decision. L. 1986)). to limitthe effect the and museum interests thatwould followifthe UnitedStatesautomatically property tradein cultural policies of some source nations.withsome success. Ass.96 Stat. or to the nations includestheiroriginalsitesor the sitesfromwhichtheywere whose territory last removed). however.the nationof originis giventhepower to define"illicit"as itpleases.34 STAN.at 2-180ff of limit Act.789 (1983). Forfeiture Cultural Framework theReturn.2635thOrdinary by Eur..L. an by of UNESCO 1970 in the UnitedStates requiring independent investigation illicit traffic beforeactionis takenunderthe of of determination the gravity the allegedly Convention.2351 (codified 19 U. 6).45 on sought.S. ratiand States reservations understandings by in further limited theUnited The in fication theConvention 1972.C. theft.republished THE INTERNATIONAL TRADE IN ART 94 (1982). of components therepatriation resolutions other and of or of Restitution. No. Sess. ELSEN. . & POL. further theeffects Property of provisions theCultural and U. were as 370 (1982). Parl.S. " Fora discussion these movement. Implementation supranote45. the attention source nations has turned to what is now generallycalled "repatriation": the return of culturalobjects to nationsof origin(or to the nationswhose people include the culturaldescendantsof those who made the objects.47 1978 UNESCO established Intergovernmental Committeefor Promotingthe Returnof Cultural Propertyto its Countries and in 1983 in of Origin or its Restitution Case of IllicitAppropriation. Essayon theInternational States itsdrafting.Texts Adopted theAssembly. 15 Property. That is why legislationimplementingUnited Dealer. in "repatriation" moredetailin another 4' 48 See id.48 Assemblyadopted a Resolution on the Counc-ilof Europe Parliamentary movementare The premisesof the repatriation Returnof Works of Art. collector Statesadherenceto UNESCO 1970 took 10 yearsto enact.S. 808 (1983). ??2601-2613 (West Supp.Y. NewInternational INT'L L.. 50 I will use that and movement theassumptions underlie oftheterm the discuss repatriation article. the United Nations General Assembly of callingforthe restitution culturalproperty adopted a seriesof resolutions the In of to countries origin. MERRYMAN & A. supra note17. An in Bator.46 acquiesced in the retentive of of Since thepromulgation UNESCO 1970. No. Res. in its Preamble and " The United the under its UNESCO 1970 in 1972 butreserved obligations States ratified of The legislation.U. 275.illegal export or exploitation)and should be "repatriated. Beginningin 1973. REV. Oct.97-446. 2 (Sept.J. Theireffects to attached U. for The see Nafziger.pt. result a number of by until Convention theenactment Congress implementing Act Implementation Property on the and of efforts muchnegotiation. of of 46The provisions UNESCO 1970 weremoderated the participation the United by Trade in Art.1986] THINKING ABOUT CULTURAL PROPERTY 845 nations.""o A COMPARISON OF HAGUE 1954 AND UNESCO 1970 We have seen that the Hague 1954 Preamble speaks of "the cultural heritage of all mankind. Convention Cultural at in wasenacted 1983as Pub. N." UNESCO 1970.J. to Dealers.49 a logical extensionof thosethatunderlie UNESCO 1970: culturalproperty belongs in the source country.removal by coand collectionsare wrongfully lonial powers.
Peru's Rich Antiquities Crumbling Museums. supranote 3." At this writing. fromPeru to some saferenvironment would be clearly threatenedartifacts preferableto theirdestruction throughneglectifretained. nationalforums and in the literatureon culturalproperty.52 same is trueof almostany otherpromThe inentculturalproperty claim: e. they mightbe betterpreserved.but theymayalso In some cases the twoapproaches reinforce lead in different and inconsistent directions.UNESCO 1970 supports retention of cultural propertyby source nations. THE PROTECTION 27 OF CULTURAL PROPERTY (1974). withSchumacher. To the culturalnationalist. 53 According to newspaper reports. O'KEEFE & L. . supra note 5. emphasizesthe interests statesin the "national culturalheritage.These different emphases-one cosmopolitan.claimingthatit was stolenfromMexico in the 19thcentury.belongin Greece and shouldbe returned Greece. 31. THE PLUNDERED PAST (1973). 1089 (1976). at 14. 54 Compare Peru WagesCampaigntoHalt Trade in StolenTreasures. the case is easy if only the assumptionsand termsof culturalnationalismapply: the marbles are Greek. questionbecomesmuch more complexand interesting. HASTINGS L.Int'l Herald Tribune. Between France and Mexico.the Mexican Governmentnow has the Codex and has refusedto returnitto Paris. if theywere in Switzerland. Peru retains works of earlier cultures it that. at 41. For example. Aug. Times. Niec. B. col. 52See Merryman. BURNHAM. Oct..846 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. in 1983.the United States or some other relanationwitha developed community museumsand collectors of tively wealthy knowledgeable about and respectfulof such works. 1982.Y. MEYER. K.g. Riding.Germany. But ifcultural to is the internationalism introduced intothediscussion. Aug. 1982.they could be better of preserved.54 endangered workswere moved to some other nation.5'l each other.Thus." For example. 4. Aug. at 23. accordingto newspaperreports. fromthe Bibliotheque Nationale in Paris.studied and displayedand more widelyviewed and enjoyed.I referto them as "cultural internationalism" and "cultural nationalism. should Mexico returnthe Mayan Codex. 80 of throughout. PROTT. By preventingthe transfer fragileworksto a locus of higher protectionwhile inadequately preservingthem at home.cultural nationalism dominatesthe field. at 1. J. ?C. Legislative Models ofProtection Cultural of Property. 1. To a cultural internationalist. does notadequatelyconserve If or display. Times.it provides the reigningassumptionsand termsof disin course in UNESCO and otherinternational organizations. destruction nationalcultural of the but property throughinadequate care is regrettable. 15. N. 1981.. 19. Peru endangers 5 The leading worksinclude: P. mightbe preferableto the export of its "loss" through export.one protective. to stolenby a Mexican (a lawyer!) France?53 nationalism internationalism and become The differences betweencultural in particularly significant cases of what mightbe called "destructiveretention" or "covetous neglect." Hague 1954 seeks to preserve cultural propertyfrom damage or destruction.a CulturalCrisis.the othernationalist.the other retentive-characterize two ways of thinking about culturalproperty. in discussingthe Greek demand for returnof the Elgin marbles fromEngland. San FranciscoChron.N.Y.
the Concerning the language from UNESCO Recommendation 56Consider thefollowing supra note19: Property. a source nationsassure 5 supra. In this way. to collectors and dealers abroad. hence "destructiveretention" or "covetous neglect. whatever their financial Considering many quality origin and of or of objects indisputable specimens cultural several identical similar or which ofonlyminor are someoftheseitems.55 Thus. nation practice. that cultural institutions. . Perhaps. is widelybelieved thata numberof source It nationsindiscriminately retainduplicatesof objects beyondany conceivable domesticneed. in other of parts theworld"is specious If human cultural of dramatic. the interestof foreignersin seeing and studyingsuch works(their "common culturalheritage")could be accommodated. thenotion a common think is validand. though it to enjoyment. uninventoried unavailablefordisplayor forstudybydomesticor foreign and scholars. believe. ifaccess theobjects compose isnecessary its and heritage taken is I has as many then hoarding theeffect describe. In thisway. note5 in for motivations suchhoarding a separate the I willdiscuss possible cf.1986] THINKING ABOUT CULTURAL PROPERTY 847 mankind's cultural heritage. the achievementsof earlier culturesof the source nation could be exhibited to a wider audience.and the demand thatis currently met throughthe illicitmarketcould be partiallysatisfiedby an open and licittrade in culturalproperty. reflection.Cultural internationalism.Foreigndealersand collectors would gladlybuy them. .57 of A further criticism retentive of culturalnationalism thatby prohibiting is or undulyrestricting licittrade in culturalproperty. however. Exchange Cultural of International article. theyfail to spread theirculture. accurate. Cultural nationalismfindsno fault with the nation that hoards unused objectsin thisway.while not necessarilydamaging to the articles retained.study and display(and conserve)them.56They forbidexport but put much of whattheyretain to no use.theyfail to exploit such objects as a valuable resource for trade and they contributeto the culturalimpoverishment people in other partsof the world. hadnodiscernible retentive with dominant the "cultural that ofpeople has impoverishment colleague suggested theexpression 5 Aneminent I On however. that which amply would welcomed be because their of plurality. and are documented. it that to seriously.despitetheexistenceofforeign for markets them. impact source on has nationalism. serves no discernibledomestic purpose other than assertingthe rightto keep them. a practice that.Foreignmuseumsthatlack examplesof such objectswould willingly acquire. countries.out of tune in described thetext. uncataloged. exchange or loan. possess resources. and/orexcessive." Culturalnationalismand internationalism diverge in theirresponses also to the practice of hoarding culturalobjects.As a recommendation. for institutions secondary importance these . whilerefusing make themavailable to museums.urges thatobjects of thatkindbe made available abroad by sale. multipleexof amples of artifacts earlier civilizations reportedlyare retained by some nationsalthough such worksare more than adequately representedin domesticmuseumsand collectionsand are merelywarehoused. in accessions institutionsother as valuable by culto UNESCO Recommendation nations exchange urge of interesting Other provisions this in aimedat thehoarding nations areclearly and tendency with tural property institutionsother it imposes legalobligation no and.
do unnecessary are being surreptitious. thewholeapparatus museums exhibitions. Source nations generally approach. senselessly in cultural obtained for knowinglyillegally not Art dealers commonly are blamed only dealing and alleged) planning funding but encouraging. the existenceof the illicit further legal controls. have merelydeterminedthe form thattraffic takes and the routes it follows. itisdifficult. That appetite is the source of the demand for cultural and. ethically corrupt police customs dealers. growing. a blanket museum may excavations in may condemnation thosewhoparticipate thetraffic be too easy:illegal of that may hidden. and instigating. the New an bookson antiquities important Yorkdealerhasencouraged demand writing The roleofdealers theillegal in traffic be can tradein. they notthesource theproblem. 80 Histhe existence of an active. Their activities.There is littlereason to suppose will traffic cease as long as the world'speoples have an appetite thatthe illicit for access to representative collectionsof works fromthe great varietyof human cultures. more of the traffic more controls produce more source nations and UNESCO self-inflating: illegal trade.observe existence comment itsimplications.the extensionof legal controlsmakes makes the argumentof the illegal and thus. of an easytarget.thenthearguments controlledlegalizationof the traffic become impressive. profitableand corruptingblack market. even(itissometimes objects for to has An and illegalexcavations smuggling. the tighterthe export control in the source nation.Opposite assumptionsare at work: tradejustifies to the source nationsand UNESCO. example. a on in supra note46. byeducation. it appears. ARTS MGMT. out growing ofpeople's Dealersare and of and scholarship. citingthe existenceof the illicitmarketas evitake the contrary controls.To the critic. The other ifone of private at but exists..perversely. 16. ofsomeofthepeoplewhocarry on (avaricious insensitive acquisitive collectors.at 5. lawsprohibiting through be wouldotherwise destroyed etc. nurtured aboutthehuman interest andcuriosity ownexistence.Mayansitesin Mexico and CentralAmerica For who. CulturalObjects. whichcalls for more controls. smuggling saveworks remain that wouldotherwise works revealimportant export maybe the covetous neglect. laymajorblameforcreation thedemand thefeetof dealers. J. and and together undoubtedly or artifact the collector museum Dealersbringthe cultural But and ownservices inventories. the stronger has been the pressure to forman illicitmarket. laws have not effectively There is ample empiricalevidence thatretentive but limitedthe trade in culturalproperty. of Somecombination the the and blames dealersforcreating nurturing demand. thebasicdemandhas its the encourage demandfortheir in past. 58See discussion Bator. are but . existing serves already the seenincontrasting One viewisthat dealermerely ways. overinclusive.Hot Art:A Reexamination theIllegal International market"). No. The demand is substantial illicit If it is truethatthe demand forculturalobjectsguaranteesthatsome for will traffic occur.59 objects. not docuand to what theyleave. it or of 59 One neednotapprove thetraffic. out of ignorance and the need are currently mistreatedby huaqueros damage both to what theytake to act covertly and in haste. arousedart historian complained me thatby for. Fall 1982. on and to its professionals). & L.848 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. at 317 ("Ten easylessons howtocreate black of Trade in with Merryman Elsen. The Preamble of UNESCO dence of the need for international 1970 incorporatesthe source nations' argument:the entire Convention is can reduced by based on the premise that the illicittraffic be significantly adopting more extensivelegal controls. Still.cultural objects. looks thehistory thegreat effects undoubtedly both of at to and publiccollections. 3. and hencetheillegal an demand. cynically and officials.58 torically.and so it escalates.
supra note17.dealers or tionalists). anthropologists Objects that merelyreplicate works already adeof supervised huaqueros? and quatelyrepresentedin the source nationare expensiveto storeproperly constitutea valuable.They could able and willingto be deposited on long-termloan in foreigninstitutions care forand displaythem.supervisedby professionals?60 thisway. The plausible assumptionis that those who are prepared to pay the most are the most likelyto do whateveris needed to protect their investment. objectstheyremovebecome anonymous. in I provide another which will discussion. Would it be betterifthe income fromculturalproperty conduct the traffic.inanycase. in and of with strategy Italy Germany MERRYMAN See thedescription experiments this & A. collectorsable and willingto care for them.ethnographic retentivepolicies clearly lack the resources Some nations with strongly or the present inclinationto care adequately for their extensivestocks of (and to many culturalnaculturalobjects. lawspreventthe market Yet the UNESCO Conventionand nationalretentive oppose the marketand fromworkingin thisway.withthe huaqueros.consequently. between exchanges only The recommendation supports a is argumentobviouslycontroversial The and form transaction collectors dealers. on is dependent theactivities largely of propertystill circulation cultural [T]heinternational causesthepriceofsuch which and to parties so tends lead to speculation ofself-seeking while and to it property rise. well as the work archaeologists. They impede or directly It however.to bribepolice and customsofficials in partto the huaqueros local and foreign.The more important reasons. resource for internationaltrade.at 2-112ff 61 The UNESCO Recommendation Exchangeof Cultural the Concerning International stating: bias a of Property 1976. To the culturalinternationalist thisis tragic.in large part. A ONE-SIDED DIALOGUE I have emphasized the criticisms retentive culturalnationalismfortwo of persuasive. legallywhat was formerly unnecessaryphysicaldamage could be avoided and the work of removal documented.who for and to make profits the criminalentrepreneurs. one and. One way that culturalobjects can move to the locus of highestprobable protectionis throughthe market.expresses clearantimarket in itsPreamble.61 is not necessary. by the act of removal of much of theirvalue as culturalrecords. Would it be betterifsuch objects were sold and the proceeds used to enrich in and museum activities the nation of origin? archaeological. One is that I findthese criticisms 60 inJ. sold abroad were available in the nation of originto supportthe workof its as and other professionals.1986] THINKING ABOUT CULTURAL PROPERTY 849 deprived the mented. market with of place.needsmuchfuller . Would it doing were conducted openly. be betterifsuch activities In illegal.the moneypaid for illegallyremoved worksgoes but. ELSEN. but unexploited.supra note19.Such objects could be sold to museums.making inaccessible poorercountries institutions at the to the trading. of the nation's culturalheritagein order to exploit it.to sell pieces thusendanger culturalproperty. encouraging spreadofillicit sametime salesand any rejecting institutions. Such objects could be traded to foreignmuseumsforworksthat would enrich the abilityof each nation to expose its own citizensto worksfromother cultures. At present.
64 It has. previously cited in thisarticle.68 62 The element of romance in cultural nationalism and the influenceof Byron in creating and nurturing are discussed in Merryman. TIAS No. 68 Agreement forthe Recoveryand Returnof Stolen Archaeological.850 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 15. 1981. it supra note 5. The danger is that UNESCO 1970. seeJ. UNESCO 1970 occurs in a pallid and generally ignoredclause in the Preamof of ble describingthe benefits the international interchange culturalpropamong nations erty:"Consideringthatthe interchangeof culturalproperty forscientific. deprivesit of any practicalforce. the tide runs strongly The United against the forces of cultural internationalism. 1970. culturaland educational purposes increasesthe knowledgeof the civilization Man. at 1-75-1-77.is thatin the 1970s and 1980s. a major culturalpropertymarketnation."The restoftheConvention. congenial to presentation represented of the positionembodied in UNESCO 1970.Historicaland Cultural Properties. refusalto sign Hague 1954.combined with its antimarket bias. 1984. whilethe interests in Hague 1954 have no prominentor convenientvoice. 63 To UNESCO's credit.Historicaland Cultural Properties.63 In the United States. General Assemblyand UNESCO in particular-are instead dominated by nations dedicated to the retentionand repatriationof cultural property.less view on culturalproperty questions-the United Nations purelynationalist.ratified The United underit. further legitimize The only hintof recognitionof these realitiesin culturalinternationalism. mutualrespectand appreciation cultural includingthe Preamble.Sept. however.S. supra note 17. TIAS No. United States-Guatemala (not yetpublished). That instrument's formalstatusas a mere recommendation. MERRYMAN & A. 22 UST 494.66executive agreementswith Peru67and Guatemala. less exclusivelynationalistic approach at have been made in some of itsrecommendations. Historicaland Cultural Properties. 80 reason.65 UNESCO 1970 and enacted implementing legislation a Stateshas also supportedthe retentive nationalist positionthrough bilateral treatywith Mexico. politicscombine withroFirstWorld-Third World and capitalist-socialist of the manticByronism62 stifle energeticpresentation the viewsof market to is nations. 10136. turalproperty policyis made. 64 For an exchange of correspondencesetting out the official reasons for U. United States-Mexico. United States-Peru. July17. The international agencies that mightbe expected to representthe more cosmopolitan. 19. 66 Treaty of Cooperation Providingforthe Recoveryand Returnof Stolen Archaeological. As a result. however. States has never become a partyto Hague 1954. providesunqualifiedsupportforretentive nationalism.Seeinparticular supranote the RecommendationConcerningthe International Exchange of CulturalProperty.however. at 1903-05. some efforts a broader. 7088. ELSEN. enrichesthe culturallifeof all peoples and inspires of among nations. The structure is at international organizationsand conferences. 791 UNTS 313. with its exclusive emphasis on napolicieswhilestifling will questionablenationalist tionalism. 65 See note 45 supra. . the dialogue about cultural and conproperty has become one-sided.May 21. 67 Agreement forthe Recoveryand Returnof Stolen Archaeological. Retentivenationalismis strongly culreceived whereverinternational fidently representedand supportively and contextof such discussions.the voice of culturalinternationalism seldom heard and less oftenheeded in the arenas in whichculturalpolicyis made.
??2091-2095 (1982)).S. 757 (1983). 1979). A similarbill passed by the New York legislaturewas vetoed by the Governoron July28.S. 86 Stat. Pub.72 the U. 96-95. 1982) (twoDurer portraits Such actionsare of course subject to the normallyapplicable rules protectinggood faithpurmaybe brought. 724 (codifiedat 16 U. The United States was committedto freetrade in culturalpropWorksstolenabroad and broughtintothe United Statescould of course erty.to the committed.S.U.69 indeed. at Pub. No.74 This paradoxical policybegan in the late 1960s. INT'L L. CustomsService71 and criminal the United States (togetherwithCanada) is of all culturalpropertymarket both in declarationand action. to lands under appliesonlyto objectsillegally jurisdiction. supra note 46. & POL. as had long been the rule in all nations. of As to limitation actions. 1974). to It appears unlikely pass. Times. 1297 (1972) (codifiedat 19 U.76The noveltywas the gradual 69 70 See discussionof "The Boston Raphael" in J.2d 1154 (9th Cir.2d 658 (5th Cir.UJ. to stolenat theend ofWorldWar II orderedreturned East Germany). statutepunishing or of transportation stolenpropertyin interstate foreigncommerce. MERRYMAN & A. federalownershipor protective in explanationof the reasons forU. which.70aggressiveadministrative ture and murals. Wayward Property. in Guatemala. Hollinshead had illegallyremoved a stele froma Mayan site. N. when the United States became UNESCO 1970. 593 F. United States v. In both cases.75 whateventually in decided to participate drafting worksof art and other Until then. 721.. 73 Merryman. Machiquila. the courtstreatedthe removalsin violationof the foreignlaws as "thefts"under the U. whichactionsto recoverproperty the chasersand to rules limiting timewithin studying The InternationalInstitutefor the Unificationof Private Law in Rome is currently should receive less protectionthan is proposalsthatgood faithpurchasersof culturalproperty giventhemunder the laws of mostEuropean nations. involvement the project thatculminated 75 For a brief in UNESCO 1970. & POL.itwouldsharply in statuteof limitations actions broughtby foreignowners to recover stolen culturalobjects. limited fromthe United States was significantly 74 Freedom of export of culturalproperty timein 1979 by ?470ee of the Archaeological Resources ProtectionAct.Ifenacted. at 21. 857 (1983).e. L. 2-7ff 7' Fitzpatrick. . statuteand upheld the convictions.whichare generallyless protective of of of bona fidepurchasersand thusmore protective owners.S. 76 A recent example is Kunstsammlungen zu Weimar v. see Bator.S. 93 Stat. July29. ?470aa-47011 (1982)).Y.There is a briefdescription the Institute'swork on thistopic in 1986 REVUE INTERNATIONALE DE DROIT COMPAR? 130-31. forthe first No.73 of enforcement other nations' retentive permitsthe export of culturalpropertyfromits own national territory. CulturalHeritage.C.S. McClain.the national policyhad been consistent: importedwithoutdutyand could be freely could be freely culturalproperty exported. 15 Cultural Policy tozvard Customs The Course: Lawless A INT'L L.Y. Both had broughtthe objects into the United States for sale. Hollinshead.however. ELSEN. nationsthe moststrongly thoughit freely laws and policies. N. 1986. Both cases were prosecutionsunder a U.Y. prosecutionof smugglers. at 370. 92-587.1986] THINKING ABOUT CULTURAL PROPERTY 851 sculpof the controlling importation pre-Columbianmonumental legislation action by executive action.678 F. to Art International Law: FromCulturalNationalism a Common 15 N. 1986.2d 1150 (2d Cir. is at thiswriting 72 United States v. be recovered by theirownersin civilactions before stateor federalcourts. takenfrom"public lands and Indian lands"-i.C.The proposals would bringthe normally to European rules closerin effect those in the United States. McClain had illegallyremoved pots and beads fromMexico. L.a bill entitled"The Cultural PropertyRepose Act" is at thiswriting reduce theperiodoftheapplicable beforetheUnitedStatesCongress. Proposed legislationthat would limitCustoms Service activities before Congress but appears unlikelyto pass.J. 495 F. supra note 17. Elicofon.
and he mightbe impatientwith the argument thatmuseumsin othernationsnotonlyshouldforgobuildingsuch collections but should activelyassistMexico in suppressingthe "illicit" trade in those would agree thatpaintingsshould objects. 78 A distinguished colleague has questioned the desirability permitting of such worksto fall into the hands of collectorsbecause theywillnot be available forpublic viewingand study.79 tionalist findsomething will ludicrousin the insistence thata Matissepainting thathappened to be acquired byan Italian collectorhad become an essential part of the Italian culturalheritage. any and sculptures culturalinternationalist would oppose theremovalof monumental or fromMayan siteswhere physicaldamage or the loss of artisticintegrity culturalinformation would probablyresult. 1973. 79 See Stewart. a crude and undocumentedjob of removal mightstillbe preferablefromthe culturalinternationalist point of view.80 of More fundamentally. TheProtection theCultural of Heritage: ItalianPerspective. if the alternative to leave themin a place where theyare unavailable for but viewingand studyand receive no attentionfromqualified conservators.ifthe site is a neglected one and the removalsaves worksthatwould otherwise crumble away. 80Jeanneret Vichy.77The same culturalinternationalist. . and the priestsells it for moneyto repair the roof and in the hope that the purchaser will give the paintingthe care it needs. There are broad areas in whichtheyoperate to reinforce ones arise when the two waysof Those are the easy cases. v.852 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 28.These are important to is considerations. THE PROTECTION OF THE ARTISTIC AND ARCHAEOLOGICAL HERITAGE 164 (1976). over a period beginningaround 1970.Despite the occasionallysuccessful to efforts collector. directions.dealer and museuminterests moderate thisresponse. a worldorganizedintonation77 Although. collector may be a preferable.2d 259 (2d Cir. however. of in thegeneraldirection the United Stateshas been one of supportforcultural nationalism. done. then the Even the most dedicated cultural naproblem begins to look different. basis of culturalnationalism the and the validity In itspremises seem to requirereexamination.693 F.But ifa paintingis rotting the churchfromlack of resources to care forit. but incompetently. rubatelo!"). of a growingnumber in of and variety restrictions the importation culturalproperty response of on to theretentive policiesof source nations. The interesting have to be made. at 21 ("perpiacere. Apr.any internationalist (or not be stolenfromItalianchurchesforsale to foreign domestic)collectors in or museums. UNITED NATIONS An in SOCIAL DEFENCE RESEARCH INSTITUTE. TwoCheersfor Tombaroli.Then distinctions thinkinglead in different questionsrequire refinement it becomes necessaryto choose. and the opportunity monitorthe quality of care theyreceive is limited.Eventually. each other'svalues.whetherthe removalwas illegal or was legally. Luna. mightwish that Mexico would sell or trade or lend some of its potsand otherobjectsto foreign reputedly large hoard of unused Chac-Mols. CONCLUSION are Both waysof thinking about culturalproperty in some measure valid. Thus. 80 introduction. 1982). collectors78 and museums. In principle. manyworksof museum qualityin the hands of privatecollectorsfind theirway to museums. the NEWREPUBLIC.
concerningpieces of humanity's materialculture. In the contemporary world. 3 (1970).1986] THINKING ABOUT CULTURAL PROPERTY 853 statesand in a system international in whichthe stateis the principal of law player. CULTURAL RIGHTS AS HUMAN RIGHTS. A concern for humanity'scultural of heritage consistent is withtheemergenceofinternational lawsand institutions protectinghuman rights. supra note 5. at 1916-2 1.both waysof thinking about culturalpropertyhave theirlegitimateplaces. 82 See Merryman. emphasison nationalism understandable.8'A slighteremphasis on cultural nationalismis withthe relativedecline of nationalsovereignty consistent thatcharacterizes moderninternational law. .integrity and distribution/access 82seem to carrygreater weight.nationallyand internationally.insistent presentationof thosevaluesin discussions about tradein and repatriation culturalproperty of will in the longer run serve the interests all mankind. STUDIES AND DOCUMENTS ON CULTURAL POLICIES No. an is But theworldchanges.locally. and with it the centrality the state. The firm.But where choices have to be made between the two waysof thinking. Both have something importantto-contributeto the formationof policy. then the values of cultural internationalism-preservation. of 81 See UNESCO.
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