Cultural Heritage Rights

Anthony J. Connolly

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351946933
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto internazionale

This collection brings together selected articles on key areas in the field of cultural heritage rights discourse. Contributed by an international group of scholars, the papers address conceptual and political issues and explore themes in contemporary literature on cultural heritage such as repatriation, looting and illicit trade, the effects of armed conflict and the relationship between tourism, economic development and cultural heritage. The legal regulation of cultural heritage is also discussed, with articles on regulatory challenges, current practices around the world and issues and challenges in common. Topics which are likely to become increasingly important in the future, such as climate change, cultural globalisation, human genomic science and the shift to a post-liberal, post-rights politics and law of cultural heritage, are also explored. This volume, which presents the most up-to-date scholarship in an area of increasing interest and relevance, is an indispensable reference resource for libraries, lecturers and students.

Part I
Foundations

[1]

Cultural Property Internationalism

John Henry Merryman*

Abstract: Cultural property internationalism is shorthand for the proposition that everyone has an interest in the preservation and enjoyment of cultural property, wherever it is situated, from whatever cultural or geographic source it derives. This article describes its historical development and its expression in the international law of war, in the work of UNESCO, and in the international trade in cultural objects and assesses the ways in which cultural-property world actors support or resist the implications of cultural property internationalism.

“Cultural property internationalism” is shorthand for the proposition that everyone has an interest in the preservation and enjoyment of cultural property,¹ wherever it is situated, from whatever cultural or geographic source it derives. In the frequently quoted words of the 1954 Hague Convention, cultural property is “the cultural heritage of all mankind”² In an earlier article³ I briefly described and contrasted “cultural internationalism” and “cultural nationalism,” as they concern cultural property. Here I return to cultural property internationalism, describing its historical development and its expression in the international law of war, in the work of UNESCO, and in the international trade in cultural objects.

What is “cultural property?” It sometimes seems that any human artifact (matchbook covers? baseball cards? fruit box labels? perfume bottles?) can qualify.⁴ Most people, however, will discriminate, reserving the “cultural property” title for a more limited range of objects that are distinguishable from the ordinary run of artifacts by their special cultural significance and/or rarity. Any attempt at a definition will reveal that the cultural property category is heterogeneous. The problems created by including Matisse paintings, archaic Chinese bronzes, and African masks in the same “cultural property” category are not pursued here, although such disparities clearly must, at some level, eventually require distinctive treatment. As cultural property law and policy are currently structured, however, that process has barely begun. The UNESCO instruments described later in this article, for example, typically define “cultural property” to include anything and everything and treat the category as a collective unit. Much source nation legislation is similarly structured. Most recently, a practical distinction between antiquities and other cultural objects seems to have emerged.⁵

The cultural property category is also amorphous and boundless. Thus the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects⁶ applies to objects “which, on religious or secular grounds, are of importance for archaeology, prehistory, history, literature, art or science [what else is there?] and belong to one of the categories listed in the Annex to this Convention.”⁷

Empirically, cultural property centrally includes the sorts of things that dealers deal in, collectors collect, and museums acquire and display: principally works of art, antiquities, and ethnographic objects. These are the foci of a social subsystem we can call “the cultural property world,” which is populated by artists, collectors, dealers and auction houses, museums and their professionals, art historians, archaeologists and ethnographers, and source nation cultural officials, among others. These people and institutions form a kind of ecology; whatever significantly affects one actor affects the others.

The cultural property world is international. Ethnographic museums in London and Berlin maintain extensive collections of African, Oceanic, and American objects. The Metropolitan Museum mounts a Vermeer exhibition from a variety of foreign and domestic lenders and its own collections. Japanese dealers attend New York and London auctions to bid on works by French impressionists and German expressionists. Swiss dealers offer Greek and Roman antiquities in widely distributed illustrated catalogs. American collectors build important art and antiquity collections of works from Europe, Africa, East and South Asia, the Middle East, and Latin America. The works of American artists are acquired by Dutch museums and German collectors. In this empirical sense, cultural property internationalism is not an argument or a hypothesis; it is an observable fact.⁸

No thinking person argues for free trade in cultural property. Regulation is necessary in order to preserve cultural property and to support its proper international circulation. Appropriate regulation serves the international interest of “all mankind” in the preservation and enjoyment of its “cultural heritage.” Excessive regulation, however, thwarts that same international interest. Regrettably but predictably, the various cultural-property world actors do not always agree on whether a restriction is or is not “excessive.” The international cultural property world is divided along this and other dimensions. I address these divisions, with particular emphasis on their implications for cultural internationalism, at a number of points in this article.

In my view, source nation regulations preserve the cultural heritage when and to the extent that they protect fragile objects that are likely to be damaged or destroyed by movement and when they prevent the dismemberment of complex objects, like the panels of an altarpiece or the components of a sculptural group. When antiquities are removed from their contexts in order to preserve, study, and enjoy them, archaeologists rightly urge and source nations rightly require that the removal be done with care and that it be accompanied by full documentation. It seems right that objects of ritual/religious importance to living cultures remain with or be returned to the representatives of those cultures, as were the Afo-a-Kom⁹ and, under NAGPRA,¹⁰ American Indian artifacts. And finally, it is internationally important that the inhabitants of every nation, including the poorest survivors of colonial exploitation, have access to a fully representative collection of objects that represent their history and culture.

We begin with the history of the idea that cultural property should be protected from destruction and plunder in war.

CULTURAL PROPERTY AND WAR

Classical international law placed few restraints on the destruction or plunder of enemy property, cultural or other. Our history of the topic begins with Polybius of Athens, writing before 146 B.C.:

One may perhaps have some reason for amassing gold and silver; in fact, it would be impossible to attain universal dominion without appropriating these resources from other peoples, in order to weaken them. In the case of every other form of wealth, however, it is more glorious to leave it where it was, together with the envy it inspired, and to base our nation’s glory, not on the abundance and beauty of its paintings and statues, but on its sober customs and noble sentiments. Moreover, I hope that future conquerors will learn from these thoughts not to plunder the cities subjugated by them, and not to make the misfortunes of other peoples the adornments of their own country.¹¹

As a historian, Polybius is here making an argument (“it is more glorious”) and expressing a wish (“I hope that”) and does not suggest that his proposition is in any sense law. His wish was not soon fulfilled. In the reigning pattern of conquest estab lished by the Romans, victors appropriated works of art and other cultural treasures from conquered peoples as trophies of war, to be displayed in triumphal marches and installed in the Roman Forum. The Forum became the world’s first great out door museum, adorned with works whose presence affirmed Roman military power and illustrated its conquests. The Roman style was revived by the Venetians and other Italian powers during the Crusades and the Renaissance.

The legal status of cultural property in war began to change in the seventeenth century with Grotius, who summarized the weight of received legal opinion and international practice from antiquity up to his time in this way:

That it is not contrary to nature to despoil him whom it is honorable to kill, was said by Cicero. Therefore it is not strange that the law of nations has permitted the destruction and plunder of the property of enemies, the slaughter of whom it has permitted.¹²

While accepting that this harsh rule was law, Grotius argued for its moderation. In a particularly pertinent passage, he proposed that sacred or artistic works should not be destroyed where there is no military advantage in doing so, citing Polybius, Mar cellus and Cicero:

Polybius says it is a sign of an infuriated mind to destroy those things which, if destroyed, do not weaken the enemy nor bring gain to the one who destroys them: such things are temples, colonnades, statues and the like. Marcellus, whom Cicero praises, spared all the buildings of Syracuse, public and private, sacred and profane, just as if he had come with his army to defend them, not to capture them.¹³

Grotius, a natural lawyer, is here employing general philosophical principles of moderation and proportion: destruction that neither weakens the enemy nor helps the destroyer is immoderate and disproportionate. Grotius appears to deplore the violation of these principles, rather than the resulting loss of cultural property.

Two centuries later Vattel provided a more robust argument for the protection of works of art and architecture in time of war:

For whatever cause a country is ravaged, we ought to spare those edifices which do honor to human society, and do not contribute to the enemy’s strength—such as temples, tombs, public buildings, and all works of remarkable beauty. What advantage is obtained by destroying them? It is declaring one’s self an enemy to mankind, thus wantonly to deprive them of these monuments of art and models of taste; and in that light Belisarius represented the matter to Tittila, King of the Goths. We still detest those barbarians who destroyed so many wonders of art, when they overran the Roman Empire.¹⁴

Here we see what may have been the earliest expression of true cultural property internationalism: Vattel argues that cultural property should be spared in the interests of “mankind” and “human society,” and he broadens the basis for protection to include aesthetics (“works of remarkable beauty”). Like Grotius, Vattel recognizes the primacy of military necessity but he also draws a distinction between necessity and mere convenience:

Nobody presumes to blame a general who lays waste gardens, vineyards, or orchards, for the purpose of encamping on the ground, and throwing up an entrenchment. If any beautiful production of art be thereby destroyed, it is an accident, an unhappy consequence of the war; and the general will not be blamed, except in those cases when he might have pitched his camp elsewhere without the smallest inconvenience to himself.¹⁵

We will return to military necessity below.

A major development in the history of cultural property internationalism took form as a reaction against Napoléon’s appropriation of works of art for the Musée Français (later to become the Louvre) during his first Italian Campaign in 1796–99. The planning for this extended plundering enterprise began in Paris, where “as early as October 16, 1794, the Commission temporaire des arts had appointed a subcom-mittee of four members to compile full information concerning works of art and science to be found in countries which the republican armies were expected to invade.” ¹⁶ Accompanied by commissioners armed with these lists, Napoléon exacted huge concessions of works of art from the Italians, formalizing some of them as “reparations” in the terms of armistice treaties imposed on the losers. Thus the Duke of Modena surrendered forty-nine pictures; Parma another forty-seven; Milan twenty-five; Venice its famous bronze horses, the lion from St. Mark’s, sixteen pictures and other treasures; and so it went. The list is long, and at one time Napoléon boasted that “We have stripped Italy of everything of artistic worth, with the exception of a few objects in Turin and Naples!” ¹⁷

The French plunder of Italian art excited strong feelings. Poets declaimed and intellectuals argued. Some emphasized the benefit to a larger public of mounting and publicly displaying so great a concentration of important works of art that had formerly been widely dispersed, often among private holders, and visible only to the few. The French defended th...