U.S. Policy on the Enforcement of Foreign Export Restrictions on Cultural Property & Destructive Aspects of Retention Schemes
Cunning, Andrea, Houston Journal of International Law
I. INTRODUCTION II. BACKGROUND III. CULTURAL NATIONALISM & CULTURAL INTERNATIONALISM IV. NATIONAL IDENTITY & CULTURAL PATRIMONY V. REPATRIATION OF CULTURAL PROPERTY & FREE TRADE VI. DEFINING CULTURAL PROPERTY VII. U.S. CONVENTION ON CULTURAL PROPERTY IMPLEMENTATION ACT VIII. THE NATIONAL STOLEN PROPERTY ACT UNDERMINES THE PURPOSE OF THE CONVENTION ON CULTURAL PROPERTY IMPLEMENTATION ACT IX. THE MCCLAIN DOCTRINE AND WHY IT SHOULD BE INVALIDATED X. STRICT SCRUTINY FOR RETENTION SCHEMES ON CULTURAL PROPERTY XI. THE ELGIN MARBLES, REPATRIATION & PRESERVATION XII. WAIVER OF RIGHTS UNDER THE UNESCO CONVENTION XIII. DESTRUCTIVE ASPECTS OF REPATRIATION & THE INABILITY TO PROTECT THE BAMIYAN BUDDHAS XIV. SECOND PROTOCOL TO THE HAGUE CONVENTION & AMENDING THE UNESCO CONVENTION XV. CONCLUSION
To ameliorate the weaknesses in current cultural property law, remedies should be sought that address the problems of theft, destruction, and looting before they occur. This article first provides a general background of cultural property law in Section II. Section III then discusses cultural nationalism and cultural internationalism and how these concepts influence current legal regimes regarding the protection of cultural property. Cultural nationalism is criticized in Section IV, on the basis that it leads to the practice of indiscriminate retention of cultural objects. The idea that cultural identity is lost through trade in cultural property is criticized in Section V on the bases that: nations have populations with many identities at different periods of time; the idea of a nation having one identity is spurious, given the economic gain a nation obtains by retaining cultural property; and cultural retentionism is facilitated by the fact that cultural property has been made an exception to free trade. Therefore, as discussed in Section VI, defining what constitutes cultural property is important to developing legitimate trade in cultural property.
This paper will discuss the UNESCO Convention, the Convention on Cultural Property Implementation Act, the National Stolen Property Act, and case law pertaining to the repatriation of cultural property in Sections VII and VIII. Next, Section IX will examine why foreign export restrictions are enforced under the McClain Doctrine, despite the U.S. policy against enforcing foreign export restrictions. Section X will examine the possibility of strictly analyzing and enforcing cultural property, as defined. Section XI will examine the controversy over the Elgin Marbles and the risks associated with the repatriation of cultural property. Retentionism will be distinguished from preservation, and the recent destruction of cultural property in Afghanistan will be discussed as an example of why repatriation of cultural property is not synonymous with protection. In Section XII, the possibility of creating a waiver under the UNESCO Convention will be examined. This waiver would permit parties to the UNESCO Convention to decline the request of a source nation for repatriation in cases where the source nation has not fulfilled its safeguarding obligations under the UNESCO Convention. Section XIII will illustrate the destructiveness of a retention scheme by describing the situation in Afghanistan that led to the destruction of its museums and ultimately the destruction of the Bamiyan Buddhas. Finally, this paper will propose in Section XIV that the UNESCO Convention can be improved through an amendment much like the Second Protocol to the Hague Convention. This paper will conclude in Section XV that the current law regarding cultural property is very inconsistent and does not aid in the protection of cultural property. Rather, current law unquestioningly assumes that repatriation is a good end in and of itself. This assumption undermines free trade, which may in fact better protect cultural property, or at least not be as damaging to cultural heritage, as the current law assumes. …