Academic journal article Chicago Journal of International Law

The Principles for Cooperation in the Mutual Protection and Transfer of Cultural Material

Academic journal article Chicago Journal of International Law

The Principles for Cooperation in the Mutual Protection and Transfer of Cultural Material

Article excerpt

I. INTRODUCTION

The Principles for Cooperation in the Mutual Protection and Transfer of Cultural Material ("Principles")1 provide a substantive framework for helping to avoid and to resolve disputes arising out of requests for the transfer of cultural material, usuaUy involving its return or restitution to countries of origin or indigenous groups. Adopted in 2006 by the International Law Association ("ILA"), the nine Principles were drafted by the ILA's Committee on Cultural Heritage Law after several years of research, prekminary reports, and review sessions.2

The Preamble to the Principles emphasizes the need for a guiding spirit of partnership among private and pubkc actors through international cooperation. The Principles are intended to be used by a broad range of interested parties: governments, museums, other institutions, persons, and groups of persons. To facilitate the desired spirit of partnership among such a broad range of actors and potential issues, the Principles are simple and specific. Their guidance in handling transfer requests is fundamentaUy a technique for mutual protection of cultural material. The Principles are therefore tools for good stewardship.

The essence of good stewardship, as that concept has evolved in recent years, is responsible care of entrusted affairs or objects. But what do we mean by responsible care? The definition Hes in the details. The Principles help define the ethos of stewardship in the context of the actual or potential tensions that result from multiple legal claims to culturally important material. By fostering mutuaUy acceptable agreements for the careful disposition and possession of such material, the Principles are intended to avoid the unnecessary ktigation of competing claims. They are not intended to replace ktigation of issues but simply to faciktate collaboration between competing claimants in a process of first resort. To understand where the Principles fit into the larger regime to protect cultural heritage, it wül be helpful to review some legal background.

II. LEGAL BACKGROUND

A. HARD LAW

Until the last few decades, nations-in both international and indigenous senses of the word-have reked largely on their own diverse practices, antiquities laws, export controls, and enforcement mechanisms to deter and respond to losses of their cultural heritage. This rekance has suffered from a lack of rules and procedures to govern the transnational movement and relocation of cultural material. To be sure, throughout the twentieth century there were scattered büateral agreements, ad hoc arrangements involving indigenous claims, and an emerging humanitarian law appkcable in time of armed conflict.3 But general international law had httle to say about threats to cultural heritage until the late 1960s, when the problems of looting and international smuggkng reached a critical level of visibikty and transnational discourse. What foUowed was a sort of renaissance of treaty-making and other developments in the 1970s, beginning with the seminal United Nations Educational, Scientific, and Cultural Organization ("UNESCO") convention on illegal trafficking in cultural property ("1970 UNESCO Convention").4 These initiatives provided a foundation for subsequent UNESCO instruments and other legal developments to protect cultural heritage, including new domestic legislation for responding to claims of indigenous nations.

The resulting legal framework is impressive and growing, but it is stiU handicapped by several debihties. These include a kmited ratification of the treaties (especiaUy among cultural market countries, though they have been gradually becoming parties); inadequate implementation and enforcement of treaty requirements; divergent treaty interpretations and rules governing statutes of kmitations; the rights of bona fide purchasers and other secondary issues; over-rekance on expensive and time-consuming ktigation to resolve issues; and too ktde engagement between pubkc and private actors in formulating and applying new rules and procedures. …

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