Academic journal article Northwestern University Law Review

The Need to Revamp Current Domestic Protection for Cultural Property

Academic journal article Northwestern University Law Review

The Need to Revamp Current Domestic Protection for Cultural Property

Article excerpt


What is culture, and why is it so important to preserve? Culture is defined as "the complex whole which includes knowledge, belief, art, morals, law, custom and other capabilities acquired by man as a member of society."1 Furthermore, culture is recognized to encompass material commodities2 and artifacts, as well as nonmaterial products of human thought that are shared by a particular group or society. These tangible and intangible symbols of one's heritage often represent the "key to [a people's] identity and the source of their inspiration.114

The tangible objects that embody these abstract notions of culture are generally termed "cultural property. 115 Whether archaeological, ethnographical, or historical objects or works of art, the significance of these cultural objects results from their integral role in constructing and perpetuating a shared identity.6

Because [cultural property] speaks directly to the inner consciousness within which we resolve whether we do really feel a sense of belonging to a group or community, it links group members to their ancestors and heirs, thereby satisfying a basic need for identity and symbolizing shared values. What some groups see as a cultural artifact, other groups see as a living thing which enables them to achieve confidence in themselves and, thus, able to imagine their IMAGE FORMULA6future.

"Cultural objects nourish a sense of community, of participation in a human enterprise,"8 and if such objects are properly cared for, they can span across many generations, carrying with them the importance and values of past generations. Thus, how we treat and care for these objects has a great impact on our own cultural identity.9

Since such objects are invaluable, limited, and nonrenewable,10 a world without art and cultural representations of our heritage and history would be "psychologically intolerable."il

If one acknowledges that cultural property can embody the accomplishments, values, and beliefs of a people, more is at stake than the simple legal right to possess such objects. To a large degree, individual countries are protective of their cultural patrimony because of a sense of national pride and the need to preserve unto themselves the works created by and representative of their own people.12

Because preserving objects and artifacts of cultural significance can essentially preserve the past for future generations, it is important that an adequate legal regime exists to preserve and protect cultural property. In recent years, however, the exponential increase in art theft has severely weakened the ability to preserve and protect cultural property.

Illicit art trade is second only to narcotics trafficking as the largest and most profitable type of illegal trade worldwide.13 The number of archeological artifacts secretly excavated and illegally exported every year continues to grow at an astounding rate.14 These recent, dramatic increases in international art theft and illegal trafficking of cultural objects have forced the international community to reconsider the adequacy of the protections currently afforded to cultural property. I I

Adequate protection of cultural property requires sophisticated efforts IMAGE FORMULA9

to prevent theft, illegal export, and pillaging of archaeological sites. "Once objects are removed from the ground, they can be appreciated for their aesthetic appeal, but only if they are excavated scientifically can they also be appreciated for their scientific, historic and cultural values."16 When an object is carelessly, illegally excavated, there is a substantial risk that the object will lose its context in the process of being removed from the ground, thereby preventing archaeologists from reconstructing "the functions of such objects, to learn more about diet, technology, trade, settlement patterns, religion, literature-in short, to learn about every aspect of a past society. …

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