Keeping the Barbarians outside the Gate: Toward a Comprehensive International Agreement Protecting Cultural Property

"The British say they have saved the [Elgin] Marbles. Well, thank you very much. Now give them back."-Melina Mercouri1 In 1897, a British expedition arrived in the Nigerian city of Benin while the king of Nigeria was engaged in a sacred ritual, during which contact with foreigners was forbidden. The British insisted upon an authence, producing a conflict in which most of the expedition team was killed. When the British retaliated, the citizenry was massacred, the city sacked, the royal palace burned, the kingdom toppled, and tens of thousands of bronze, ivory, and wooden antiquities plundered, many of them sent to Britain, some lost forever. When Nigeria opened its National Museum seventy-one years later, many of the nation's most significant artifacts could be shown only in photographs and replicas.2 Nations feel an obligation to provide-indeed, a nation's citizens may demand-protection for their "cultural property": the works of art or architecture, religious or historical artifacts, or other physical embodiments of a nation's cultural output. When, however, such property is transported abroad, reclaiming the property may be difficult, at best, and all but impossible by nonviolent means, at worst. This Comment proposes a framework for a new international treaty governing both the treatment of cultural property and the creation of an international body to resolve disputes and promote the protection of cultural property. This is not a new goal, of course, but the Comment's main contention is that it is possible to resolve the conflicts that have prevented past efforts in this regard from achieving meaningful success. In order to understand, much less resolve, the challenges inherent to this undertaking, a good deal of background is necessary. The term "cultural property" is difficult to define and the concept has a substantial history, so Section I briefly discusses this topic. Additionally, the challenges facing any international agreement regarding cultural property in the proposal, ratification, and application stages are legion, and numerous such challenges have proven their capacity as "deal breakers," so these problems will be examined in Section II. A number of proposed agreements have been adopted or have fallen short of meaningful adoption; there is agreement that none of these proposals is adequate, so an examination of these failed proposals is prerequisite to understanding the reasons why proposed agreements obtain ratification or fail. Sections III and IV examine these historical agreements and various proposals. Section V proposes the framework for a new, comprehensive solution to international cultural-property disputes. Finally, Section VI offers conclusions about the potential for implementing, either in whole or in part, the Comment's recommendations. I. HISTORICAL BACKGROUND At first blush, it is tempting to define cultural property as including only chattels, limited to art and historic relics. This definition is clearly inadequate, however, when one considers, for example, the Parthenon, cave drawings, the Bamiyan Buddhas,3 or similarly immovable products of various cultures. Thus, unsurprisingly, a variety of definitions have been offered, both in international dialogue among nations and by academics. The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict ("Hague Convention")4 and the Second Protocol to the Hague Convention ("Second Protocol")5 define cultural property broadly, including all "movable or immovable property of great importance to the cultural heritage of every people," "buildings whose main and effective purpose is to preserve or exhibit [ ] movable cultural property," and "centres containing a large amount of cultural property."6 The definition in the UN Educational, Scientific and Cultural Organization ("UNESCO") Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property ("UNESCO Convention")7 is more specific, covers chattels only, and specifies categories of chattels as covered, including flora and fauna, archeological finds, works of art in any medium, rare manuscripts, postage, coins and revenue, and archives of any kind. …