U.S. policy on the enforcement of foreign export restrictions on cultural property & destructive aspects of retention schemes.

• Author: Cunning, Andrea

1. INTRODUCTION II. BACKGROUND III. CULTURAL NATIONALISM & CULTURAL INTERNATIONALISM IV. NATIONAL IDENTITY & CULTURAL PATRIMONY V. REPATRIATION OF CULTURAL PROPERTY & FREE TRADE VI. DEFINING CULTURAL PROPERTY VII. U.S. CONVENTION ON CULTURAL PROPERTY IMPLEMENTATION ACT VIII. THE NATIONAL STOLEN PROPERTY ACT UNDERMINES THE PURPOSE OF THE CONVENTION ON CULTURAL PROPERTY IMPLEMENTATION ACT IX. THE MCCLAIN DOCTRINE AND WHY IT SHOULD BE INVALIDATED X. STRICT SCRUTINY FOR RETENTION SCHEMES ON CULTURAL PROPERTY XI. THE ELGIN MARBLES, REPATRIATION & PRESERVATION XII. WAIVER OF RIGHTS UNDER THE UNESCO CONVENTION XIII. DESTRUCTIVE ASPECTS OF REPATRIATION & THE INABILITY TO PROTECT THE BAMIYAN BUDDHAS XIV. SECOND PROTOCOL TO THE HAGUE CONVENTION & AMENDING THE UNESCO CONVENTION XV. CONCLUSION I. INTRODUCTION

   To ameliorate the weaknesses in current cultural property law, remedies should be sought that address the problems of theft, destruction, and looting before they occur. This article first provides a general background of cultural property law in Section II. Section III then discusses cultural nationalism and cultural internationalism and how these concepts influence current legal regimes regarding the protection of cultural property. Cultural nationalism is criticized in Section IV, on the basis that it leads to the practice of indiscriminate retention of cultural objects. The idea that cultural identity is lost through trade in cultural property is criticized in Section V on the bases that: nations have populations with many identities at different periods of time; the idea of a nation having one identity is spurious, given the economic gain a nation obtains by retaining cultural property; and cultural retentionism is facilitated by the fact that cultural property has been made an exception to free trade. Therefore, as discussed in Section VI, defining what constitutes cultural property is important to developing legitimate trade in cultural property.

   This paper will discuss the UNESCO Convention, the Convention on Cultural Property Implementation Act, the National Stolen Property Act, and case law pertaining to the repatriation of cultural property in Sections VII and VIII. Next, Section IX will examine why foreign export restrictions are enforced under the McClain Doctrine, despite the U.S. policy against enforcing foreign export restrictions. Section X will examine the possibility of strictly analyzing and enforcing cultural property, as defined. Section XI will examine the controversy over the Elgin Marbles and the risks associated with the repatriation of cultural property. Retentionism will be distinguished from preservation, and the recent destruction of cultural property in Afghanistan will be discussed as an example of why repatriation of cultural property is not synonymous with protection. In Section XII, the possibility of creating a waiver under the UNESCO Convention will be examined. This waiver would permit parties to the UNESCO Convention to decline the request of a source nation for repatriation in cases where the source nation has not fulfilled its safeguarding obligations under the UNESCO Convention. Section XIII will illustrate the destructiveness of a retention scheme by describing the situation in Afghanistan that led to the destruction of its museums and ultimately the destruction of the Bamiyan Buddhas. Finally, this paper will propose in Section XIV that the UNESCO Convention can be improved through an amendment much like the Second Protocol to the Hague Convention. This paper will conclude in Section XV that the current law regarding cultural property is very inconsistent and does not aid in the protection of cultural property. Rather, current law unquestioningly assumes that repatriation is a good end in and of itself. This assumption undermines free trade, which may in fact better protect cultural property, or at least not be as damaging to cultural heritage, as the current law assumes.

2. BACKGROUND

   There are two underlying and overlapping theories on why cultural property should be protected. One theory, cultural internationalism, reasons that cultural property should be protected because such property is linked to the development of a common human culture. (1) The other theory, cultural nationalism, reasons that cultural property should be protected because such property is linked to the national heritage of a group of people. (2) International agreements have been based upon both theories. The United States signed the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of November 14, 1970 (UNESCO Convention). (3) In 1983, the United States implemented UNESCO in the U.S. Convention on Cultural Property Implementation Act (CPIA). (4) The UNESCO Convention is based upon the theory of cultural nationalism, which favors the repatriation of cultural property. Often repatriation is seen as a means of protecting cultural property or as a remedy when the cultural property has been stolen. (5)

   This paper examines why the repatriation of cultural property is not synonymous with the protection of cultural property. Further, although the United States signed the UNESCO Convention and implemented it domestically, the United States did so in a manner that deliberately rejected cultural nationalism as the underlying basis of the UNESCO Convention. Furthermore, the United States did not fully implement Article 6 of the Convention, which requires parties to honor the export restrictions on cultural property imposed by other parties. (6) The United States limited its recognition of foreign export restrictions to situations where there is an agreement to enforce foreign export restrictions and to cases of emergency where looting has reached crisis proportions. (7) Despite this deliberate attempt to limit the U.S. recognition of foreign export restrictions, source nations have been able to enforce their export restrictions in the United States by making claims to cultural property on the basis that it has been stolen, when it fact it really only has been exported in contradiction of the laws of the source nation. (8) Thus, an inconsistency in U.S. policy regarding cultural property protection has been created: Even though the United States does not recognize foreign export restrictions except by agreement and in cases of emergency, antitheft laws effectively circumvent U.S. policy on cultural property protection. This inconsistency should be remedied by legislation on the matter.

   Further, this paper examines how cultural property laws based on a theory of cultural nationalism promote the practice of retentionism by source nations and concludes that retentionism can be destructive to cultural property, as illustrated by the situation in Afghanistan. Therefore, the UNESCO Convention, which fosters retentionism of cultural property, should be amended to place more of the burden on those trying to retain cultural property protection and to institute proactive--rather than reactionary--protective measures. This can be accomplished by amending the UNESCO Convention in a manner modeled after the Second Protocol to the 1954 Hague Convention, which provides for the establishment of a fund for the peacetime protection of cultural property from theft and looting. To that end, a waiver of cultural protection should be recognized in the event that a source nation does not live up to its UNESCO Convention obligations. These measures address the root of the problem in cultural property protection--safeguarding it from destruction, theft, and looting--rather than impose remedies such as repatriation only after such events already have occurred.

3. CULTURAL NATIONALISM & CULTURAL INTERNATIONALISM

   In Two Ways of Thinking about Cultural Property, John Henry Merryman outlines two attitudes toward cultural property: cultural nationalism and cultural internationalism. (9) Cultural nationalism is the belief that cultural property is a part of national cultural heritage. Cultural internationalism is the belief that cultural property is part of a common human culture. (10) The UNESCO Convention embodies cultural nationalist ideals, whereas the Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 (Hague Convention) embodies cultural internationalism. (11) This difference is evident in the preambles of the two agreements. The Preamble of the UNESCO Convention states: "[C]ultural property constitutes one of the basic elements of civilization and national culture, and that its true value can be appreciated only in relation to the fullest possible information regarding its origin, history and traditional setting." (12) Alternatively, the Hague Convention Preamble states: "[T]hat damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind." (13)

   Thus, the UNESCO Convention is based upon a theory of cultural nationalism in that cultural property is believed to be best appreciated within the context of its place of origin, and the Hague Convention is based upon a theory of cultural internationalism in that cultural property is believed to belong to the cultural heritage of all mankind. Cultural nationalism "gives nations a special interest, implies the attribution of national character to objects, independently of their location or ownership, and legitimizes national export controls and demands for the 'repatriation' of cultural property." (14) Moreover,

   [a]s a corollary of this way of thinking, the world divides itself into source nations and market nations. Nations like Mexico, Egypt, Greece and India are obvious examples [of source nations]. In market nations, the demand exceeds the supply. France, Germany, Japan, the Scandinavian nations, Switzerland and the United States are examples [of market nations]. Demand in the market nation encourages...