The perennial argument over whether Britain should return the Elgin Marbles to Greece1 is illustrative of the larger debate between "cultural nationalism" and "cultural internationalism."2 Namely, is cultural property primarily intrinsic to the nation-state of origin, or can be equally compelling claim be made on behalf of the cultural
heritage of mankind? The pertinent issues surrounding the debate are more penetrating than the initial appearance of questions of ownership and protection of cultural property may divulge, however, and revolve around topos of property law,3 the status of illegally exported or stolen cultural objects,4 cultural affiliation to the property,5 the rights of indigenous peoples,6 state sovereignty,7 the effectiveness and enforcement of international treaties,8 international economics,9 and the general public interest in cultural property.10 Proposals for resolution of the debate include the establishment of an international tribunal to resolve disputes,1l regulation of the trade in antiquities,12 the transfer of technology to "source nations"13 to help in the preservation and display of their artifacts-modeled after international cooperative initiatives designed to protect the ozone layer14-and intervention on an international level for protection purposes analogous to the United Nations Convention on the Law of the Sea (UNCLOS).15 The implications of the cultural property debate are not merely theoretical.l6 On the contrary, they have arisen from and continue to be fueled by eminently practical considerations. A number of notions can be advanced to illustrate this. First, the need for protection of cultural property reflects the reality that archaeological resources, and at least all non-contemporary art, are irreplaceable.7 Second, despite the increasing promulgation of treaties and international agreements addressing protection and preservation of cultural property, it is apparent from the disregard for ownership and destruction of cultural property during the recent warfare in the Persian Gulf and the former Yugoslavia19 that these agreements have failed at some level to provide adequate protection and engender appropriate respect.20 Third, theft and illicit trade in cultural property have continued to proliferate,21 surpassed only by drug trafficking and, perhaps, arms trading.22 Finally, the market plays a prominent role in that the demand for cultural property in market nations has stimulated exports-both legal and illegal-- from source nations.23
Notwithstanding the significance of the aforementioned issues as necessary to a fundamental understanding and potential resolution of the cultural property debate, the philosophical underpinnings of the controversy remain unexplored. I think the debate is best understood within the context of two theories of international legal philosophy. Hence the focus of this Article, which aspires to traverse, at least on a preliminary level, international jurisprudential concepts that may be reflected in the arguments pertaining to cultural property law.24 Part II compares the modern definition of cultural property-as declared by the UNIDROIT Convention-- with the prior standard definition promulgated by UNESCO 1970. Parts III and IV expose the nationalism-internationalism polemic, discussing the supporting and detracting arguments for each position while considering the relevant provisions of pertinent international treaties that reflect the views of the two camps. Part IV also includes two proposals that have been advanced, proposals that deal primarily with elevation of the issue onto a broadly international stratum.
Part V examines two theories of international law that are purposeful to the debate, the New Stream and Critical Race Theory-- both of which are offshoots of Critical Legal Studies. The New Stream, while itself perhaps not providing a solution, helps to expose the internal structure of the cultural property debate by considering the structural constraints and indeterminacy of international law. …