The Economics of Cultural Property Laws

• Author: Adam Wallwork
• Position: The University of Chicago Law School
• Pages: 1-35

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2014 e Institute for Migrant Rights

rst published online 05 September 2013

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The Economics of Property Laws

A W

e University of Chicago Law School

E-mail: awallwo1@gmail.com

is Article addresses the question of whether cultural property laws, which require

archaeological artifacts to remain in countries of origin, have been a boon for nations

with extensive archaeological records, as most archaeologists and lawmakers presume,

or have hampered archaeological excavation by limiting source countries’ freedom

to enter into artifact-sharing agreements, as economists would predict. e Article

provides the rst statistical analysis of cultural property laws’ eect on archaeological

discoveries by comparing the number of World Heritage Sites discovered before and

after the enactment of cultural property laws in 90 countries with at least one archae-

ological site on UNESCO’s World Heritage List. It concludes that such laws cause

a statistically signicant diminution in the number of archaeological discoveries in

countries that enact such laws.

Keywords: Cultural Property Laws, Comparative Laws, International Law, Law and

Economics, Art and Entertainment, Law and Statistics, Legal Empirical Studies, Inter-

national Trade Law.

I. Introduction

Cultural property laws (also known as patrimony laws), such Egypt’s “Law

on the Protection of Antiquities” (1983)1 typically limit or prohibit the

export of certain “cultural objects” or “national treasures” from the source

1. See United States v. Schultz, 333 F.3d 393, 399 (2nd Cir. 2003) (upholding an art

dealer’s conviction for violating Egypt’s Law 117).

The Indonesian Journal of International & Comparative Law Volume I Issue 1 (2014) at 1–35

Adam Wallwork

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country’s territory, restricting free trade is these antiquities.2 e United

Nations Educational, Scientic and Cultural Organization (UNESCO)

lists 1715 laws protecting cultural property at the national, regional, and

international level.3 National and international laws protecting cultural

properties are nothing new. Under the Treaty of Westphalia (1648), the

European countries were obliged to return “archives, writings, and other

movables” illegally seized from another sovereign.4 is treaty obligation

was invoked by Antonio Canova, acting as envoy to Pope Pius VII, to

convince Napoleon to return hundreds of artworks and manuscripts to

the Vatican.5 On April 7, 1820, Pope Pius VII promulgated his Pacca

Edict, which established the Papal framework for preserving culturally

signicant works of art.6e Pacca Edict regulated licenses for excavation

and prohibited the removal of excavated cultural artifacts from the Vat-

ican.7 During the American Civil War, Abraham Lincoln promulgated

the Lieber Code on April 24, 1863 to protect “Classical works of art,

libraries, scientic collections, [and] precious instruments” from “avoid-

able injury.”8 In Europe, the Brussels Declaration concerning the Laws

and Custom of War (1874) prohibited any “seizure or destruction of . . .

historic monuments, works of art and science” and the Swiss Canton of

Vaud passed a statute in 1898 criminalizing the removal of artifacts from

2. See John Henry Merryman, Cultural Property, International Trade and Human

Rights, 19 C A  E. L.J. 51, 52–53 (2001) (discussing the concept

of “national treasures” in international law).

3. UNESCO Database of National Cultural Heritage Laws, available at http://www.

unesco.org/culture/natlaws/index.php?&lng=en (last visited Apr 22, 2013) (1715

laws protecting “Cultural Movable Heritage—Cultural Property”; 509 laws pro-

tecting “Cultural Immovable Heritage”; 237 laws protecting “Intangible Cultural

Heritage”; and 229 laws protecting “Natural Heritage.”).

4. Tullio Scovazzi, Ethical Principles and Legal Rules in the Field of Return of Cul-

tural Properties *3–4 (2008), available at http://portal.unesco.org/culture/es/

les/39157/12433501641Scovazzi_E.pdf/Scovazzi_E.pdf (last visited Apr. 21

2013).

5. Id. at 6.

6. Editto del Cardinale Camerlengo Pacca del 7 aprile 1820, available at http://www.

unesco.org/culture/natlaws/media/pdf/italy/italy_legislation_07_04_1820_ital-

orof.pdf (last visited Apr. 25, 2013).

7. Id.

8. Kate Fitz Gibbon, “Chronology of Cultural Property Legislation” from Who Owns the

Past?, 5 C M 37–38 (2013).

The Economics of Cultural Property Laws

Adam Wallwork

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designated historical monuments.9Italy enacted its rst patrimony law

in 1907.Other countries have adopted patrimony laws in ts and spurts

from 1898 to the present.

In the wake of the Second World War, the United Nations estab-

lished UNESCO in 1945 to oversee the reconstruction of Europe’s his-

toric cities and to create an international framework for the preservation

of cultural artifacts.10 One hundred and twenty-three nations are parties

to UNESCO’s 1970 Convention on the Means of Prohibiting and Pre-

venting the Illicit Import, Export and Transfer of Ownership of Cultural

Property (“1970 Convention”).11 is Convention declares “the indefea-

sible right of each State Party to . . . to classify and declare certain cultural

property as inalienable, which should therefore ipso facto not be export-

ed.”12 UNESCO’s 1970 Convention has shaped the subsequent develop-

ment of regional treaties and national laws protecting cultural heritage.

Article 40 of the European Union Treaty authorizes trade restraints “im-

posed for the protection of national treasures possessing artistic historic

or archaeological importance” and the vast majority of U.N. member

nations restrict the export of designated cultural artifacts.13

Modern cultural heritage laws follow four basic patterns. e least

restrictive cultural heritage laws require owners of cultural property to

register their property with the government, “preserve it with good care

9. Scovazzi, supra note 4.

10. Gibbon, supra note 8, at 38–49 (cited in previous page).

11. See UNESCO, Convention on the Means of Prohibiting and Preventing the Illicit

Import, Export and Transfer of Ownership of Cultural Property, (Nov. 14, 1970),

249 U.N.T.S. 240, available at http://www.unesco.org/eri/la/convention.as-

p?KO=13039&language=E (last visited Apr. 25, 2013) (listing the United States,

Great Britain, France, Germany, and other signatories).

12. Id. at Art. 13(d).

13. For the “national treasure” exception to the European Union’s prohibition on ex-

port controls, see Treaty of the European Union, (Feb. 7, 1992), 31 I.L.M. 247

(1992). For national laws requiring a license to export national treasures, see, e.g.,

Lois 477 of 31 December 1992, as amended by Lois 643 of 10 July 2000 (France);

Protection of Movable Cultural Heritage Act 1986, Act No. 11 of 1986, as amend-

ed by Act No. 5 of 2011 (Australia). See also John Heny Merryman, supra note 2,

at 51–65 (discussing European law); Jukka Jokilehto, ICCROM and the Conser-

vation of Cultural Heritage: A History of the Organization’s First 50 Years 3 (2011),

available at http://www.iccrom.org/eng/02info_en/02_04pdf-pubs_en.shtml (last

visited Apr. 25, 2013) (discussing African law).