Globalization and National Culture: Recent Trends toward a Liberal Exchange of Cultural Objects
Siehr, Kurt G., Vanderbilt Journal of Transnational Law
TABLE OF CONTENTS I. GOOD OLD TIMES? A. Free Trade and Exchange B. Pillage and Plundering in Times of War and Dependence C. Expropriation and Nationalization II. RESTRICTIONS AND LIBERALIZATION OF EXCHANGE A. Export of Cultural Objects 1. Export Prohibitions a. National Export Prohibitions b. International Conventions i. UNESCO Convention of 1970 ii. UNIDROIT Convention of 1995 iii. Export Restrictions in International Communities 2. Trends toward Liberalization a. Basic Rights as Barrier of Export Policy b. Liberal Practice to Grant Export Licenses c. Barriers for Return of Illegally Exported Objects B. Inalienable Cultural Objects 1. Special Status of Cultural Objects a. Archaeological Objects b. Objects in State Museums c. Objects of the National Heritage 2. Liberal Attitude with Regard to Foreign Restrictions of Trade a. No Enforcement of Foreign Trade Restrictions b. No Implementation of Conventions C. International Lending of Cultural Objects 1. Lending Restrictions a. Preservation of Cultural Objects b. Short-term Lending Only c. Danger in Foreign Countries 2. Liberalization of Lending Restrictions a. Immunity Provisions b. Long-term Loans c. Multinational Museums III. CONCLUSION
I. GOOD OLD TIMES?
Almost two hundred years ago, Dr. Croke, Justice of the British Vice-Admiralty Court of Halifax, handed down the earliest reported judicial decision to treat works of art as cultural property. He reasoned: "They [the arts and sciences] are considered not as the peculium of this or of that nation, but as the property of mankind at large, and as belonging to the common interests of the whole species." (1) What did Dr. Croke mean by this statement? Did he want to praise good old times of free circulation of works of art between nations? Not at all! He was fighting against some of the bad customs of traditional warfare.
The Vice-Admiralty Court had to decide whether the Marquis de Somerueles--a U.S. merchant vessel seized by a British ship during the War of 1812 between the United States and England and brought to the seaport of Halifax--should be taken as prize or returned to the owners. (2) A suit for restitution was brought on behalf of the Academy of Arts of Philadelphia to which Mr. Joseph Allen Smith had donated twenty-one paintings and fifty-two prints bought in Italy and transported to America by the Marquis de Somerueles. (3) The lawsuit was successful. (4) Dr. Croke decided:
Heaven forbid, that such an application [for restitution of the art objects] to the generosity of Great Britain should ever be ineffectual. The same law of nations, which prescribes that all property belonging to the enemy shall be liable to confiscation, has likewise its modifications and relaxations of that rule. The arts and sciences are admitted amongst all civilized nations, as forming an exception to the severe rights of warfare, and as entitled to favour and protection. (5)
Hence, Dr. Croke was confronted with some peculiarities of good-old times: the wartime limits of art trade, which survive to some extent today.
A. Free Trade and Exchange
People have traded since ancient times. In ancient times, people traded goods that today would qualify as cultural objects but were then normal goods of daily life (e.g., pottery), of aristocratic lifestyle (e.g., jewelry, statues for gardens, villas, or patios) or of funeral traditions (e.g., urns, sarcophagi, etc.). The creators of these goods were normally unknown artisans. Even if the creators were known (for example, Phidias or Ephronios), the creators may have speculated for higher prices while never having to face the export prohibitions of their home country or city. …