Protecting antiquities and saving the universal museum: a necessary compromise between the conflicting ideologies of cultural property.

• Author: Klug, Nicole

The debate over ownership of antiquities is not a new conflict. Nationalists insist that all cultural items discovered within the legal borders of a nation belong to that nation and its people. Conversely, internationalists assert that antiquities are the property of people universally. Despite the ratification of international treaties and tremendous efforts toward reform, internationalists and nationalists are still unable to reconcile their opinions to the detriment of both viewpoints. Archaeologists and art-rich nations continue to struggle with looting and the illicit market, while universal museums worry about licitly expanding their collections to ensure a complete view of the world's history. This Note examines the struggle between these divergent viewpoints and proposes some solutions to aid in reaching a compromise, which will ensure the legal and universal appreciation of culture and history worldwide.

1. INTRODUCTION II. THE LEGAL AND HISTORICAL BACKGROUND OF THE CULTURAL PROPERTY DEBATE A. Internationalism and the Universal Museum B. A History of Nationalism and Protecting National Culture III. THE IMPORTANCE OF A COMPROMISE A. Problems with the Internationalist/Nationalist Dichotomy B. Imperialism, Politics, and the Change in the International Playing Field 1. The role of politics in the preservation of cultural property 2. How imperialism affected the international movement of cultural property IV. MOVING FORWARD: SOLUTIONS A. Forgiving Past Indiscretions & Looking to the Future B. Enforcement & Use of National & International Committees of the Blue Shield C. Creating a Licit Market and Utilization of Sponsor, Loan, and Renting Programs 1. The current state of antiquities in art-rich nations a. Italy case study b. Japan case study 2. The positive aspects of licit market and trade programs V. CONCLUSION "The battle over ancient treasures is, at its base, a conflict over identity, and over the right to reclaim the objects that are its tangible symbols. At a time when East and West wage pitched battle over fundamental notions of identity..., antiquities have become yet another weapon in this clash of cultures, another manifestation of the yawning divide. And ironically, it undermines the very purpose of cultural exchange, of building bridges and furthering mutual understanding." (1)

1. INTRODUCTION

   As you open your Sunday paper, an article on the front page catches your eye: "Ten Commandments Tablets Unearthed in Gaza During Archaeological Dig." The article reports that the Metropolitan Museum of Art in New York City came to an agreement with Israel permitting the museum to remove some of the items it discovered, while the remainder of the artifacts would remain in Gaza. Upon discovering the Tablets, the Met is in luck because, according to its agreement with Israel, it now has the authority to export them to New York for restoration and display.

   The first thing that you may ask after reading this article is: When can I see the Tablets? Or perhaps different though related questions come to mind, such as who will have an ownership claim? Why would an item be preserved in a war-torn region where its safety may be compromised? Where can the entire find be legally restored and exhibited? Will the find ever be shared with other nations? It is fairly implausible that a partage agreement (2) such as the one described in the Sunday paper would exist amidst the staunch nationalistic views of art-rich nations. (3) Yet one may query whether a treasure such as the Ten Commandments should be kept in the safety of a "universal museum" (4) as a treasure for all of humankind to view in the safety of a peaceful nation. Despite continuous confrontation, these questions remain unanswered. (5)

   One view--the internationalist perspective--espouses that a treasure such as the Ten Commandment Tablets belongs on display for the entire world to see. Internationalists strongly adhere to the viewpoint that art belongs to humanity and must be dispersed for international appreciation. (6) Under the internationalist view, allowing the Tablets to remain in a war-torn region such as Gaza would put one of the greatest archaeological finds in peril, ultimately denying humanity the right to benefit from history. Alternatively, the nationalist view contends that the Tablets belong to, and should remain in, the country where they were unearthed. (7) As rightful owners, the host nation would be responsible for their display, preservation, and protection. (8)

   These two views represent opposing ends of a large spectrum concerning cultural property (9) ownership. The differences between the views become stark when antiquities with questionable or unknown provenance (10) are involved. However, neither view can reach an ideal outcome when employed in isolation. The two sides must reach a compromise in order to ensure both that art-rich nations can protect their rightful property and that the universal museum does not become an institution of the past.

   This Note explores the mounting controversy over the consequences and benefits accompanying the international disbursement of cultural property. Part II discusses the legal and historical background of the cultural property debate, providing a brief overview of the two historical schools of thought: (1) nationalism; and (2) internationalism. Part III explores the evolution of the debate over cultural property and the adaptation that nationalists and internationalists must make to both protect antiquities and save the universal museum. Part IV demonstrates the great strides that both nationalists and internationalists have made, and are making, to reach an intermediary view. This section also provides recommendations to assist museums, archaeologists, collectors, and nations to continue this process of reaching an intermediary view, such as: (1) forgiveness of past indiscretions; (2) better protection of the archaeological sites of host nations by utilizing the Blue Shield; and (3) the creation of a strong licit market and the implementation of loan programs to ensure future cultural exchange between nations.

2. THE LEGAL AND HISTORICAL BACKGROUND OF THE CULTURAL PROPERTY DEBATE

   While the history of protecting cultural property dates back to 1863 in the U.S. with the enactment of the Lieber Code, (11) the international cultural property debate began in the mid-twentieth century with the formation of the U.N. Educational Scientific and Cultural Organization (UNESCO). (12) The U.N. formed UNESCO with the intention of "building peace in the minds of people" (13) by promoting a mutual understanding of cultures from all over the world. (14) With the continued international discussion of the protection and appreciation of cultural property on the forefront, two distinct worldviews became apparent--nationalism and internationalism. John Merryman, a preeminent scholar on the cultural property debate, first characterized the divergent views and recognized that each school of thought works to further define cultural property law. (15) Nevertheless, according to Merryman, the two views present very different interpretations of property and ownership rights surrounding cultural property as a whole. (16)

   1. Internationalism and the Universal Museum

      Internationalists view cultural property as property of the global community as a whole. (17) "[I]nternationalists reason that humans have a common, universal heritage and history, and therefore, that any cultural property, no matter where it is located, is important to every human being." (18) The theory is that everyone has an interest in the preservation and enjoyment of cultural property, regardless of its provenance, mired past, or to whom it originally belonged. (19)

      Historically, internationalism was the prevailing worldview with regards to the allocation of cultural items. Cultural internationalism has its roots in the sentiment of the seventeenth-century archaeologist and author Quatremere de Quincy:

      [T]he arts and sciences belong to all [the world], and are no longer the exclusive property of one nation.... It is as a member of this universal republic of the arts and sciences, and not as an inhabitant of this or that nation, that I shall discuss the concern of all parts in the preservation of the whole. (20) The formation and growth of universal museums throughout the world is the epitomic illustration of this viewpoint that the arts and sciences belong to the entire worId. The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and Protocols (Hague 1954) best embodies the internationalist attitude that cultural property belongs to the global community. The preamble declares that "damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the worId." (21) Although Hague 1954 reinforces the notion that damaging cultural property from one country is damaging to all mankind, Hague 1954 is silent regarding the removal of cultural property from the original nation-state. (22)

   2. A History of Nationalism and Protecting National Culture

      Nationalists advocate for the protection of cultural heritage belonging to the inhabitants within a modern nation's borders. (23) "In its truest and best sense, cultural nationalism is based on the relation between cultural property and cultural definition. For a full life and a secure identity, people need an exposure to their history.... Such artifacts are important to cultural definition and expression, to shared identity and community." (24) Nationalists advance several rationales supporting their view that cultural objects are the property of their respective nation states. For example, supporters cite national pride (25) and the domestic realization of market value. (26) The Archaeological Institute of America (AIA) (27) argues that retention of cultural...