The International Protection of Cultural Property: Some Skeptical Observations

I. INTRODUCTION Cultural property refers to property that has some special relationship with a particular culture or nation state. Cultural property includes objects found at archeological sites, which provide insight into earlier civilizations, and artworks produced by members of a culture that are thought to embody or represent that culture in a distinctive way. The contours of the definition are vague and shifting, but the controversies over the use of cultural property are real, and raise important problems for domestic and international law. There are three controversies of importance today. First, a global black market in antiquities exported in violation of the domestic law of origin states is worth billions of dollars. Many of the antiquities are removed from archeological sites in violation of domestic law, exported in violation of domestic law, and then traded in places like Switzerland and the United States, ending up in museums or private collections. Origin states complain that their cultural heritage is being stolen, and archeologists worry that the goods are being removed without attention to their archeological context; they are inadequately stored, recorded, and protected, and ultimately lost to scholarship.1 Second, many antiquities that were not, stricdy speaking, stolen or removed in violation of domestic law are of such great cultural value that origin states are demanding their return despite the absence of problems with title. The complaints are thus moral and political, not legal, although often the circumstances under which the goods were obtained are sufficiendy murky that a claim of theft is made as well. Controversy over whether these goods should be returned to the origin state has added friction to the relations between states.2 Third, many antiquities are destroyed during wartime. In the first Gulf War, the US promised not to attack cultural property in Iraq, but ended up destroying some cultural property when Iraq located military assets in archeological sites.3 In the second Gulf War, the US faked to prevent looting of museums and archeological sites by criminals and ordinary Iraqi citizens. The looting has resulted in the destruction or disappearance of many antiquities. The first and third problems have been addressed by international law in the past. The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property ("UNESCO Convention") provides, among many other things, that states should respect the export restrictions of origin states.4 Thus, if Italy forbids people to export Etruscan objects, parties to the convention are supposed to pass laws that punish people who import Etruscan objects. The general view is that the UNESCO Convention has faked to halt the trade in illegally acquired antiquities, and indeed that this trade is far greater today than it was forty years ago. The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict ("Hague Convention")5 and its two protocols obkgate belligerents to avoid targeting cultural property and to protect it when possible, and it requires states at peace to take certain measures to protect their own cultural property in advance of war. The 1954 Hague Convention is also widely, although not universally, considered a failure. Even putting aside the debacle in Iraq (which is not governed by the convention because the US is not a party), the destruction of cultural property has been a feature of dozens of wars and civil conflicts over the last fifty years. In this Article, I will argue that both of these legal regimes are misconceived. Both regimes assume that cultural property is distinctive or special, and therefore different from ordinary property; however, it turns out that it is hard to make sense of this assumption. There is no good argument for international legal regulation of cultural property, during peacetime or wartime. …