Why Do You Think It's Yours? an Exposition of the Jurisprudence Underlying the Debate between Cultural Nationalism and Cultural Internationalism
Sljivic, Ana, The George Washington Journal of International Law and Economics
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. In essence, the theory posits that the "fundamental contradiction" of international legal discourse is inescapable, an oscillation that is intensified through the apparent reversibility of international doctrines.25 Critical Race Theory-which, in essence, posits that law perpetuates discrimination based on race-is somewhat less indeterminate in finding its resonance in the recognition of indigenous peoples' cultural rights, as is illustrated by the Native American Graves Protection and Repatriation Act (NAGPRA).26 How satisfactory each theory is in reflecting the tensions inherent in cultural property law will be explored in this final section. In conclusion, I shall not propose a resolution to the debate; rather, I shall attempt to show that the co-existence of the opposing nationalist and internationalist factions constitutes a necessary part of the dialogue not only in cultural property law but, when viewed in the broader sense of the sovereignty-interdependence dichotomy, in international legal discourse as a whole.
II. A DEFINITION OF CULTURAL PROPERTY
Broadly stated, cultural property is a class of objects possessing "artistic, archaeological, ethnological or historical" value.27 A more comprehensive definition is offered by the UNIDROIT Convention, which defines cultural objects as "those which, on religious or secular grounds, are of importance for archaeology, prehistory, history, literature, art or science and belong to one of the categories listed in the Annex to this Convention."28
Although the list in the Annex is identical to the categories enumerated in UNESCO 1970,29 the UNIDROIT drafters took a liberating step towards internationalism. UNESCO 1970 confines items of cultural property protected under the convention to objects that are "specifically designated by each State,"30 thereby allowing host states to restrict-but, presumably, not expand-the definition subjectively.31 The UNIDROIT Convention, however, eliminates this designation requirement. Thus, not only does the UNESCO definition give preeminence to the property aspect of cultural property by providing a list of categories of property, it focuses exclusively on the bond between a nation-state and its cultural property,32 without providing indigenous peoples the ability to designate property with which they are culturally affiliated.33
As a result, UNESCO 1970 permits states to exclude from protection cultural property not only that ethnic groups and indigenous peoples within the state may find to be of cultural proximity but also peoples outside the state.34 Critics argue that such "[a] nationally controlled, self-designated cultural property framework cannot truly promote common outside cultural property interests."35 The UNIDROIT Convention's elimination of this problematic language represents a move away from traditional territorial concepts for a protective legal framework and toward a more global regime, which emphasizes the cultural heritage of mankind.
III. CULTURAL NATIONALISM
Professor Merryman explores the premise of the cultural nationalist perspective as immanent in the doctrine of nationalism itself.36 This doctrine emerged in Europe during the French Revolution, "as nations became the primary actors in world affairs with nationalism as the supporting ideology."37 Nationalism, which had humanist roots in the Age of Enlightenment and the belief in reason and which encapsulated liberal republican thought, experienced something of a metamorphosis as German romanticism swept across Europe.38 To a large extent, the romantic-nationalist imputation to cultural property justifies retention schemes and has given rise to the notion that cultural items belong within the nation of origin's boundaries.39 Akin to other romanticist notions, cultural nationalism is potent enough to propel human behavior and continues to be fueled by nation-builders.40 Indeed, "[c]ultural association as a nationalistic medium can take on deep significance for the people of a country in terms of identification and unification."41
B. Positions Under the Marbles
While there is an increasing awareness of the significance of the internationalist aspect of the cultural property debate,42 the culrural nationalist position has tended to predominate, as exemplified both by international treaties and state retention laws.43 Cultural nationalist arguments can be illustrated by Greece's claim for the Elgin Marbles. Namely, because the Greeks created the Marbles in Greece for Athenian "civic and religious purposes[,]" the Marbles belong to, and in, Greece.44 Thus, nationalist sentiments provide the foundation for the movement toward restitution or "repatriation"45 and influence a significant portion of the discourse in the United Nations, UNESCO, the Council of Europe, as well as in the development of national state policies.46 Merryman postulates that the embodiment of Byronism47 in Occidental thought further influences those who support source nations' claims and, thus, advocate repatriation.48
The form of critique taken with regard to cultural nationalism is that its supporting arguments rely more on assertion than on justification.49 Cultural nationalism's strength and appeal come from the notion that cultural property instills a sense of "shared identity and community" by bringing peoples into contact with their history.50 The weakness, argue the internationalists, with basing cultural nationalism on the bond between a people and an object is that removing the cultural property from the source nation does not necessarily have a negative effect on the identity and community of the people of the source nation.5' In the case of the Elgin Marbles, it is difficult to see how the Greeks can feel culturally depleted by the Marbles' display in the British Museum. The British have not falsified the origin of the Marbles; rather, the Marbles have been carefully preserved and exhibited, thus ensuring the proper respect and awe for the Greek accomplishment.52 In this manner, the cultural patrimony of Greece remains undisturbed.53 On the point of access to the Marbles, the internationalists argue that writings, illustrations, and reproductions are available and should suffice in providing the Greeks with a link to their cultural heritage-unless, of course, Greece can show that a particular chemistry exists between its people and the real Marbles, on which point the internationalist argument would fail.54
The case of the Afo-A-Kom sculpture.5 provides one instance of such a chemistry and is thus more closely attuned to the cultural nationalist model than the example of the Marbles. The value of the Kom sculpture was more than historical: the sculpture possessed a magical attribute that derived from the tribe's belief that physical possession of the item was necessary to ensure the continued prosperity and safety of the tribe.56 Merryman distinguishes this type of relationship to property from, for example, the French nation's relationship to the collection in the Louvre57 on two grounds. "First, the culture that gave the object its cultural significance must be alive. Second, the object must be actively employed for the religious or ceremonial or communal purposes for which it was made."58 Merryman concludes that, while the Kom sculpture meets these requirements and hence justifies retention schemes, most cultural objects do not.59 Thus, Merryman infers that retention schemes and repatriation are not necessarily motivated by a state's concern that the object will be misrepresented in a foreign country.60 Rather, it is the physical location of the object outside the nation of origin that arouses nationalist sentiments of repossessing or reclaiming the property. This is clearly distinguishable from the "loss of cultural heritage" when an object is damaged or destroyed. Merryman views the former claim as questionable, the latter as legitimate.6l
While there is merit to this analysis, it is confusing because Merryman is attempting to shoot two arrows from the same bow simultaneously. In fact, we return to the two issues of repatriation and preservation.62 First, Merryman illuminates the contrast between the source nation's Byronist claim of possessing the object within its territory-whether the issue is one of retention or repatriation-and the two-part "Kom test" which, if met, legitimizes retention or repatriation of the item. This is the repatriation or ownership question. However, the second issue contrasts the "loss" of an item through destruction-whether it is destroyed in its nation state of origin or in a foreign state-with the "loss" of an item through its removal to a foreign state. (The Kom sculpture fits the latter category.) Destruction of the property is, in this analysis, a tangential issue and one that is separate from the issue of location. (Indeed, the issue with the Kom sculpture was not one of destruction but of location.) It is this geographic or jurisdictional issue-tied to the question of ownership-that is really at the core of the nationalist argument in favor of retaining or repossessing the cultural item. Destruction of the item invokes the preservation-- protection question, but this remains an active question irrespective of national borders.
To complete the nationalist position, then, cultural nationalist arguments like those stated above are based on the cultural value of property and are discernible from arguments premised on economic or political value.63 Possession of the Marbles results in an economic benefit, either in the sense of market value-if available for purchase-or tourism-people will travel to the region to see the objects.64 On a political level, there remains the notion that the location of the Marbles in any nation other than Greece is insulting to the Greeks.65 This argument essentially provides a political nationalism slant to the controversy and can arguably lead "to a vain and importunate overestimation of one's own nation and thus to a detraction of others."66
C. UNESCO 1970
UNESCO 1970 reflects the cultural nationalist school of thought. The fundamental goal of this convention is to prevent illicit international trade in cultural property.67 UNESCO 1970 defines "illicit" trade as the "import, export, or transfer of ownership of cultural property" contrary to the source nation's law.68 Under UNESCO 1970, states agree "to prevent museums and similar institutions within their territories from acquiring cultural property . . which has been illegally exported[,]"69 to prohibit importation of such items,70 and, "at the request of the State Party of origin, to take appropriate steps to recover and return any such [imported] cultural property . 71
Parties to UNESCO 1970 are predominantly source nations.72 Merryman posits a correlation between this disproportion and the purpose of UNESCO 1970, which is to minimize the movement of cultural property from source to market nations through import restrictions.73 Ratification of this convention by a market nation, therefore, implies that the market nation is willing to relinquish the opportunity to continue importing cultural property.74 UNESCO 1970 also implicitly focuses on national retention under the guise of protectionism.75 Under Article 3, trade is "illicit" if contrary to a state's law.76 This means that if a source nation promulgates a law proscribing export of particular items, such export is "illicit" under the treaty.77 Thus, what constitutes "illicit" trade is subject to the vagaries of national rather than objective criteria. Such a "blank check," giving a source nation the power to define "illicit" subjectively, without participation from market nations,78 affirms the idea that UNESCO 1970 is preeminently nationalist legislation.
D. Retention Schemes Explained and Exposed
Merryman advances a number of explanations for the existence of retention laws and, thus, reveals their underlying policies. One explanation, mentioned above, is that a people's relationship to an object may be of religious, ceremonial, or communal importance.79 Another suggestion centers on the idea that a government has the power to foster the general welfare of its people and should retain cultural property for this purpose.s0 This latter idea, however, leaves open the question of when the general welfare is fostered and when it is impaired by an object's presence or absence in a nation,81 as well as the question of who makes this judgment.82 A third reason for retention, labeled "opportunity preservation," is that while an art-work is physically located within a state, the state remains a potential acquirer, whether through donation, donation in lieu of taxes, purchase, or expropriation.83
More persuasive arguments for national retention may be found in the three notions of preservation, context, and integrity.84 A public policy that reflects concern for preservation and protection of cultural objects is, obviously, commendable. Similarly, a policy that ensures the contextual identity of an object with its surroundings is desirable.85 Thirdly, maintaining integrity86 of the work and showing respect for the artist's creation by keeping the work in its original form is a valid objective for any state to seek.87 While these values are desirable for inclusion in any state's domestic laws, since they deal primarily with protection of cultural items "that embody or express or evoke the human record,"ss they are arguably elevated beyond the national and into the international sphere.89 Protection of cultural works as the cultural heritage of mankind then becomes not only the nation of origin's responsibility but that of all nations.
Merryman cautions against using the term "protection" as synonymous with "retention" and questions the assumption that retention promotes protection.90 The reality is that, in cases where the source nation has inadequate protective resources or policies, retention may subject the object to damage or destruction.9l Thus, while effective export restrictions might prevent looting, retention of cultural property does not automatically ensure protection.92 Two practices that highlight this point appear to be prevalent: first, the accumulation and stockpiling of duplicate items of cultural property93 and, second, the inadequate protection of such objects.94 Neither practice promotes the values of preservation, context, and integrity; indeed, the latter practice may well impair them.95 In such instances, transfer abroad might be the more desirable solution if the objects are likely to be better cared for in a museum or other similar milieus.96 It seems reasonable to assume that a nation of origin concerned with the protection of its cultural patrimony would retain it and fund its preservation. The fact that some nations do not take adequate measures to protect their heritage indicates that their retention schemes are not solely motivated by conservation.97
The disparity between retention policies and protective measures is further illustrated by the fact that prohibiting the free transfer of cultural property fuels a black market. Thus, despite the existence of retention policies, export continues as an illicit trade.98 The consequences of such a market inevitably include a degree of damage to cultural property because looters tend to act in haste and without concern for documentation of sites.99 As a result of a flourishing black market, proposals have been made to legalize trade activities, thereby minimizing destruction of objects and providing documentation of their removal.loo In this way, income from the licit sale of cultural property could be used to fund professional conservation measures.101
E. Human Rights and NAGPRA
A somewhat different perspective of cultural nationalism is taken by Roger Mastalir, who, while conceding that nationalist arguments are, indeed, nationalist when focusing on the cultural bond between a particular nation and an object, asserts that protection and repatriation of cultural property are no less than human rights issues.102 Postulating that cultural nationalism is essentially an emphasis of the cultural aspect over the property aspect of cultural property,103 Mastalir uses the example of the Native American Graves Protection and Repatriation Act (NAGPRA)104 to illustrate the prominence of human rights principles in the cultural property domain.05 These principles constitute the premise for permitting tribal decisions concerning the regulation of human remains and cultural objects to supersede other interests and for providing that retention of tribal cultural property by museums constitutes a violation of human rights.l06
A number of nationalist-type arguments have been made in support of repatriation under NAGPRA, arguments that go beyond the blanket statement that illegal removal mandates the return of an item.107 Three arguments will be advanced here. One is that repatriation is a form of compensating Native Americans for past injustices.los By allowing tribes to claim legal title without regard to the validity of a museum's title, the resulting redistribution of property rights is, essentially, a recognition of Native Americans' human rights and not a direct acknowledgment of valid title.log Although this may be a laudatory objective, in the absence of some special bond between the tribe and the object, such a practice unfairly ignores the fact that good faith holders and third parties in possession of the property may have their own personal attachment to the object and expect their ownership rights to remain undisturbed.110
Not surprisingly, then, a second argument in support of repatriation addresses this critique by looking at the relationship between the tribe and the object and advances three proposals that could justify a powerful connective between the two: first, the recognition of "ethnic externalities;"' second, the personhood theory of property;112 and, third, the doctrine of customary right.ll3 The first proposal maintains that government intervention to provide for tribal ownership over objects with which tribes have a cultural affiliation is more efficient than relying on the imperfections of the market despite the fact that certain inefficiencies will arise by disrupting certainty of title.ll4 The efficiency of Native American ownership is such that it would minimize external costs115 and prevent holdouts.lls The internationalist response to this argument is that the cultural object is at risk because a tribe's preservation abilities, which require funds and knowledge, are often independent of its interest in retaining the object and may therefore be insufficient.ll7 Nationalists counter by claiming that, with regard to knowledge, "[a]ffiliated groups naturally have a better sense of what is appropriate and respectful," and that, with regard to funding, a portion of government funds allocated to museums could be redirected to the tribes.'8
The second proposal asserts that certain objects are so "constitutive of individual identity" that a property rule119 alone might not afford adequate protection.20 The notion behind this proposal is that an object, in its capacity as a cultural symbol, promotes the cultural identity of a group or community.121 It has even been argued that such property should be found strictly inalienable.l22 However, while the idea of an object having a close connection with cultural identity has some appeal, the concept of individual or group identity remaining inextricably linked to an object is disconcerting, for such a bond "may unduly limit . . . an ongoing process of cultural redefinition."123
The third proposal, the doctrine of customary right-whereby an object becomes more valuable when accessible to a particular group-really deals with two concepts. First is the concept of "inherently public property," in the sense of property being owned by the public.l24 Although this idea has traditionally been limited to immovables such as land, water, and historic and archaeological sites, some argue that because the value125 of cultural objects-- movables-increases when the public can share in and have access to them, these objects are also inherently public property.l26 Internationalists might take this idea further and use the reasoning to support the claim that cultural objects should remain in places that promote access, such as museums.127 The first part of this proposal, therefore, uses the concept of inherent public property to distinguish immovables-where the notion of public access refers to a community in geographical proximity to the resource-from movables-where access could be had by any group or community.l28
The second concept under the doctrine of customary right is an extension of the inherent public property notion and addresses to which group or community such public ownership could be narrowed; here, the argument is for culturally affiliated tribes.l29 The "public," in this analysis, cannot constitute an arbitrary group of people but must be "capable of acting through the medium of customs and habits."130 A tribe can be "public" because it can both fulfill this requirement and be capable of managing the property in light of its knowledge of and affiliation with the object.131 The argument proceeds that if a tribe can manage and protect its cultural property more appropriately than "an unorganized American public," the tribe will prove to be the better owner.132 An additional consideration is the issue of customary rights, which "limit public participation to a specific, identifiable group" and where the "value of the use" of the property is the central focus.l33 The argument follows that such value cannot be increased by full public access because the object in question is of unique worth to a specific group.134 By declaring tribes as the rightful owners, since it is their possession and use of an object that enhances its value, such recognition allows them to relate to the object in an appropriate manner. 135
The final argument under this pro-nationalist approach claims that no real ownership rights attach to cultural objects and that it is the object per se that commands the right treatment and custody.l36 This somewhat mystical argument posits that because of the importance and paucity of certain objects, the "property takes on a life and meaning of its own; it acquires something like a soul[,] and it is this soul, not a specific human end, which shapes our relationship with cultural property."137 Such "ensoulment" of cultural items is not unfamiliar to Native American tribes and is exemplifled in their handling of human remains.138 Whilst a quasi-property right in mortal remains permits a relative to bury a dead body, one can claim that the body is otherwise owned by the earth.l39 One reason for avoiding the treatment of a human being-whether dead or alive-as implicating property rights may be the respect for human dignity.l40 This includes a duty to preserve and respect the dead and calls for appropriate legal and moral behavior.al
By analogy, one can argue that such an approach to handling mortal remains should be applied to cultural property.142 Because cultural property is powerfully indicative of human achievement and furnishes a context for our lives and history, appropriate attention to and use of such items protects cultural memory and affiliated experiences.l43 Although internationalists will argue that cultural property, as part of mankind's common heritage, should be preserved and exhibited so as to aid us in our understanding and knowledge of different cultures, a nationalist could assert that "[v]iolating the wishes and needs of Native American tribes with respect to their cultural property neither helps the non-Indian population understand Indian cultures nor assists in creating a sense of connection."144 Thus, the goals of scientific development and education, often put forward to justify preservation and public presentation, may in fact oppose the wishes of a tribe.l45 I nternationalists argue, nonetheless, that such goals should gain preeminence over cultural integrity even though the best way of promoting such integrity may be to return the objects to those who will most appropriately appreciate them.l46
IV. CULTURAL INTERNATIONALISM
A. Preservation, Integrity, and Access
Cultural internationalists perceive cultural objects "as components of a common human culture, whatever their places of origin or present location, independent of property rights or national jurisdiction."147 Merryman advances three internationalist principles-preservation, integrity, and access-that assist in determining the appropriate allocation of cultural property in those cases in which the moral and legal arguments compelling the return of an object to its source nation are equalized148 and the nationalist arguments unconvincing.l49
The first principle, preservation, is fundamental. In the example of the Elgin Marbles, destruction of the Marbles would eradicate any allocation concerns.l50 A comparison between the residual sculptures on the Parthenon and the exhibits in London does not suggest the Marbles would be better preserved in Athens.l51 The remaining reliefs have been damaged through contact with the elements and with smog, and there is little or no likelihood of a remedy.l52 Thus, the scale tips in favor of repose. The second principle is the integrity of a cultural item.l53 In the Marbles example, the integrity principle favors Greece, for the reinstallation of the Marbles on the Parthenon would constitute a move towards authenticity and unification.l54 However, due to the danger of continued exposure to the elements, internationalists argue that the preservation interest'55 should predominate over the integrity factor.l56
The third principle is one of distribution or access,157 whereby the cultural heritage of mankind is made accessible to all people.l58 Distribution argues against repatriating all the classical Greek masterpieces to Greece, for this would lead to a cultural deficit outside of Greece.159 On the other hand, displaying Greek antiquities in collections worldwide does not deplete Greece of its art-work because it still maintains a significant amount of cultural wealth.160
Mastalir's response to the principles of preservation, integrity, and access is that they are quintessentially property notions that are governed by property law and customs regulations.l61 Any "internationalism," claims Mastalir, is in the secondary arguments for permitting present holders, often market nations, to maintain custody of cultural objects.l62 For example, preservation is primarily concerned with preventing the decay or destruction of cultural property. While this may well be achieved through export to a market nation, this is not automatically the case.163 The internationalist slant on preservation, then, really only comes to the fore in terms of preservation for the "common heritage of mankind."164
B. International Trade as a Promoter of Values
It is undisputed that if all art were retained by source nations, the cultural situation of the world would be stultifying.165 This section briefly examines the values promoted by an international trade in cultural property. One benefit to a source nation in exporting its national patrimony is that such art-works act as a "good ambassador," enticing foreigners-in the form of tourists, students, or scholars-who "can in turn stimulate and enrich that country's intellectual life."166
The obvious appeal of cultural trade to an acquiring nation is that importing cultural property enriches its own national patrimony.l67 Not only does the acquisition of art-works transform the acquiring nation into a viable exporter, but the nation can provide its citizens with greater opportunities to observe elements of other nations' cultures, which can be particularly beneficial where occasions to travel may be limited.l68 Finally, there is a widespread objective in "broadening tastes and sympathies [and] in eliminating parochialism and ignorance,"169 for man's humanity is enhanced by exposure to the world's cultural treasures.l70
C. Hague 1954 and the World Heritage Convention 1972
Hague 1954 has been put forward by cultural internationalists as embodying the raison d'etre for international protection of cultural objects.171 This treaty was adopted after World War II, following which it became apparent from the widespread and irreparable damage to cultural property that existing legislation inadequately protected cultural objects in times of war.l72 Notwithstanding the treaty's incorporation of the pre-existing `military necessity exception' to protection, Hague 1954 voiced a number of significant ideas regarding international property law, including the concept of a worldwide interest in cultural property independent of any individual nation-state's interest.l73 Internationalists argue that such a worldwide interest supports international and national legal norms geared towards providing protection of cultural property, including "rights of protective intervention for the common good of all mankind."174
The most comprehensive treaty dealing with the cultural heritage of mankind is the UNESCO World Heritage Convention,175 signed in 1972.176 Like Hague 1954, the language of the Preamble is internationalist.l77 Under the convention's provisions, however, the status of cultural property still hinges on the consent and capacity of the source nation to furnish protection, thereby elevating the nation's sovereign authority over any global interest.l78 As mentioned above, a proposal has therefore been put forward to allow a right of protective intervention in cases where it is necessary to prevent the destruction of cultural property.l79
Another essentially internationalist argument, advanced by Catherine Vernon, is that a right of protective intervention in the territorial sovereignty of states by other states or international organizations is, under certain circumstances, necessary to protect cultural property.lso The problem with this view is that it is questionable whether the notion of a cultural heritage of mankind can be implemented under current norms of international law.181 "Much of this difficulty stems from the focus of longstanding traditional legal norms on territorial sovereignty, and a nationalistic emphasis of cultural property treaties which grant control of common cultural property to the situs state, regardless of any other interested parties or states."182 When one considers the ineffectiveness of treaties in protecting cultural property, one might surmise that the notion of a cultural property of mankind is little more than a legal fiction.l83 But a framework of international law grounded in norms of national patrimony and territorial sovereignty can result in impaired attempts at preservation of cultural objects, so a proposal has been advanced to sanction international intervention when necessary to protect cultural property.l84
Nationalists put forward two arguments-territorial sovereignty and national patrimony-opposing active recognition of the cultural heritage of mankind through international intervention.185 The first upholds the theory of territorial sovereignty, under which a sovereign has control over everything found within a nation's borders.l86 Derived from the concept of the nation-state in the nineteenth century, this theory focuses on the notion of sovereign and autonomous states and has made "external intervention in a country's internal arrangements an act hostile to that country's government, as well as an infringement on the right of self-determination of the people.'l87
Internationalists respond to the territorial sovereignty theory with two counterarguments. First, modern state boundaries alone are not determinative of cultural property allocation for they are often unaligned with the creators of cultural items who occupied the territory in earlier eras.lss "The entire concept of culture defies using geopolitical boundaries as demarcations since culture is neither normally nor historically derived from a territory; rather, culture develops from the societal traditions of a people."l89 Second, a number of exceptions to the traditional theory of territorial sovereignty have emerged in non-military contexts.l90 For example, the need to curtail freedom in the use of nuclear arms is, obviously, essential to preservation on a global scale and has given rise to alternative means to coerce action in the form of "unarmed intervention."191 Similarly, the need "to induce social reform and economic efficiency" in many developing countries by international organizations192 exemplifies the fact that peaceful intervention is becoming a component of a "contemporary international order."193 States "are becoming too big to respond to the needs of people[,] and too small to respond to the globalization of capital or the challenges of militarization and environmental collapse."194 Vernon contends that protecting the cultural heritage of mankind constitutes a comparable challenge and that, therefore, a "doctrine of conditional intervention" should supersede the traditional doctrine of absolute non-intervention.l95
The second argument advanced in opposition to international intervention is the national patrimony argument whereby states maintain that the cultural property situated within their territory is "part of their national patrimony rather than the common heritage of mankind."196 Nationalists support this idea by relying on the special connection factor between people and objects.l97 Internationalists refute the national patrimony claims by arguing that some of these assertions are based solely on the object's physical location within the nation's territory and that there is no uniqueness or exclusivity to the nation's bond with the object.l98 Internationalists maintain that because the national patrimony doctrine depends on a claiming nation's laws to regulate access and protection, peoples of other states may be denied exposure to cultural property and they may be precluded from playing a role in ensuring the care of common heritage property.l99 Such culturally isolationist policies200 can have negative consequences, including the possibility that the source nation will neglect to furnish sufficient protection for cultural objects while barring the intervention of other concerned states and organizations.201
A compromise approach might be to balance a state's nationalistic interest in its "own" cultural heritage against a scheme that allows intervention to protect cultural property in the interest of preserving mankind's cultural heritage.202 This would essentially require the state to acknowledge its "dual accountability," in view of the dual appeal of cultural property-namely, as the heritage of both the particular state and that of mankind.203
Vernon's proposal for intervention would require the emergence and recognition of a new norm of international law. Vernon expounds her proposal by analogy to the United Nations Convention on the Law of the Sea (UNCLOS).204 This convention provides a model of the unique approach to common heritage by treating the sea-bed, ocean floor and subsoil as part of the "common heritage of mankind" where beyond the limits of national jurisdiction.205 UNCLOS rejected the "territorial-jurisdictional approach"-utilized in Hague 54, UNESCO 1970, and the World Heritage Convention 1972-as a foundation for protecting cultural objects found in the deep sea-bed.206 From 1982 onwards, UNCLOS has constituted the controlling law with respect to underwater archaeological sites and, in codifying prevalent international practice, confers universal ownership rights by treating the sites as the "common property of mankind."207
Some commentators advocate a multi-jurisdictional scheme for underwater reserves, whereby the "common heritage of mankind" principle would supplant the "freedom of the seas" principle.208 Under this approach, although a coastal state would maintain principal authority over its twenty-four mile contiguous zone, such authority would not be exclusive, based on the concept that the existence of one state's preferential rights suggests the existence of a hierarchy of rights and thus precludes the abolition of other states' rights to the sea in that contiguous zone.209 As a result, multiple nation-states would have jurisdiction and rights over the same area.210 By analogy, this notion could be extended to pertain to cultural property above ground whereby a state would retain territorial rights subject to "an overriding international law of protection and intervention."211 Extraterritorial jurisdiction through intervention in a host state's practices would be warranted in cases where such a state insufficiently protected the common cultural heritage within its territory and other states were concerned about its preservation.2l2
A final point on intervention. International intervention as a norm gains in support when one considers an example from English legal history, namely, the development of an English law providing for the preservation of ancient monuments.213 The idea of public preservation of ancient monuments, first introduced as a bill in 1873 by Sir John Lubbock, was met with intense hostility.2l4 The proposed law required the private owner of an ancient monument, such as Stonehenge, to offer to sell the monument to the government in the event the owner planned construction work on or demolition of the site.2l5 Under the law, the owner would be wholly compensated if the government exercised its purchase right; otherwise, the construction was sanctioned.216 Even though a less extreme version of the law was passed in 1882, the "bill marked a radical turn in the development of property law" because it "embrace [d] two related principles: that the protection of cultural property was a governmental duty, and that public ownership and control should be brought to bear on unwilling proprietors."217 By allowing public intervention to preserve a monument if an owner planned its demolition, the bill effectively expounded the notion that private ownership was insufficient to secure preservation of property218 and pioneered the notion of the "responsible owner."219 Although the state-individual relationship is distinguishable from the international realm of one state vis-ti-vis all other states, there is, nonetheless, an analogy between intervention for the `public interest' at the domestic level and intervention for the public interest at the international level, and so the former lends support to establishing the latter.220
2. Protection of the Ozone Layer as a Model for Technology Transfer
The thesis behind application of the transfer of technology proposal to cultural property is that appropriate protection of cultural property involves acknowledging both its cultural and property aspects.221 By focusing on the similarities-or "zone of agreement"-between the cultural and property aspects-namely, preservation-one can reconcile the seemingly differing goals of each.222 The cultural element can be preserved by acknowledging human rights principles;223 the property element can be preserved through physical protection.224 The proposition advanced by Mastalir is that "international protection of the global environment" also concerned a zone of agreement and that the solution to that problem could be applied, analogously, to the cultural property dilemma.225
Although the dangers of depletion of the ozone layer and destruction of cultural property differ as to the potential consequences, the need to protect both has been widely recognized. In both instances, the question of protection is beyond the capacity of a single nation to solve.226 In the ozone depletion context, the solution for protection of the ozone layer recognized that the standards of protection mandated by developed countries on a global level were beyond the abilities of developing countries, and therefore developed nations agreed to provide needed assistance by transferring control technology, expertise, and funding.227 Similarly, Mastalir suggests implementing a scheme of technology transfer to ensure the physical protection of cultural items.228 Such a scheme would also include the transfer of funds and expertise.229 Market nations would be motivated to provide such assistance because of the resulting "access to and distribution of cultural property in the form of exchanges, long-term loans, cooperative exhibitions, and cooperative scholarship."230
V. INTERNATIONAL JURISPRUDENCE: CRITICAL LEGAL STUDIES:
A. The New Stream
One way to view the cultural nationalism-internationalism debate is as a reflection of the theory expounded by Critical Legal Studies proponents and their offshoot, the New Stream scholars-pioneered by Professor David Kennedy.231 The New Stream, in articulating the deficiencies of traditional international legal discourse, attempts to analyze, explain, and invigorate the coherence of international law.232 Launched against public law liberalism, critical jurisprudence advances two critiques that are especially pertinent to and helpful in understanding the cultural property polemic: (1) traditional international legal reasoning moves within a constraining intellectual structure;233 and (2) traditional international legal argument is indeterminate.234
The Structure of International Legal Discourse
Critical scholars maintain that public international legal reasoning functions within a confined structure.235 This form of reasoning, which is mandated by the nature of international law itself,236 and is based in "structuralism."237 Structuralism serves as the basis for two forms of critical analysis.238 The first explains traditional international legal argument "as a recurring self-referential search for origins, authority, and coherence."239 The second envisions traditional international legal argument as "an historical effort to avoid repeating the dichotomies produced by liberalism's international social theory."240 I shall attempt to convey how both of these limitations dictate the framework of international legal discourse. The first constraint is "static structural analysis" and aims to disclose the structure of repetitive argumentation patterns in order to reveal and comprehend the embedded rhetoric of international law.241 Under traditional legal thought, international law is viewed "as a coherent body of rules that can resolve conflicts."242 Thus, New Stream scholars unremarkably divide international law into three doctrines-sources, process, and substance-and examine the relationship between them.243
Sources doctrine attempts to explain the derivation and hierarchical authority of international legal norms.244 Process doctrine considers the issue of participation in the international system-- mostly by states-and explores the procedural apparatus used to resolve legal problems as well as the limitations on states' authority-namely, within their jurisdictional boundaries.245 And substance discourse is concerned with substantive international norms of state behavior.246 But, in contrast to traditional legal thought, critical scholars maintain that coherence between these doctrines is, in fact, chimerical.247 "In practice, international law pursues an unachievable resolution of the dichotomy between sovereign will and world order. To provide closure, international law must find some moment of origin and authority that it cannot offer."248 International legal argument, therefore, seeks authority by reference to an "external doctrinal basis" rather than to an "internal, normative authority," because reliance on the latter cannot "reconcile the dichotomy between sovereign freedom and world order."249
What is the nature of this dichotomy between sovereign autonomy and world order? I will consider Kennedy's position more closely by focusing on his exposition of the rhetorical250 elements within each doctrine. Kennedy aims to "disclose the inherent contradictions, antinomies, dichotomies, and the essentially oppositional nature of international law" by exposing the fabric of the theoretical and doctrinal arguments within the international legal system.251 This oppositional character of international law can be unearthed in the "fundamental contradiction" intrinsic in the concept of state sovereignty, which contains both a positive and a negative element.252 The positive element of state sovereignty reflects the notion of state autonomy and independence; the negative element reflects the limitations imposed on states' freedom to act by establishing their interdependence and communal interests.25? Thus, "[t]he essential contradiction between these two faces of sovereignty pervades international law discourse and results in the essential paradox that international law both confirms and constrains state authority."254
Sources doctrine focuses on the concomitance of two rhetorics: when consensual, sources doctrine affirms sovereignty authority, yet when extra-consensual, sources discourse affirms the existence of a contemporary international order that is not "hostage to sovereign whim."255 At first glance, these two rhetorics appear to establish two extreme and opposing positions; however, neither position is static, and Kennedy notes the incessant "oscillation" between the two as necessary to invigorating the movement of international law's "theoretical concerns into a doctrinal proliferation."256
Process discourse subdivides into the doctrines of participation and jurisdiction. Participation doctrines concern actors in the international order-usually, states-whose behavior is subject to international law.257 Jurisdiction doctrines define the limitations on states' authority.258 The two rhetorics noted in sources doctrine and their oscillating positions along the autonomous-interdependence continuum reappear within the doctrines of participation and jurisdiction.259
The substantive international norms of substance discourse fall into the rhetorical categories of the law of peace and the law of war.260 "Between them, they share the labor of completing the entire substantive agenda for international law-to address the conflicts of sovereign autonomy and the cooperation of sovereign equality."261 The law of peace rhetoric relates to the notion of community262 and emphasizes the need for cooperation between states while respecting sovereign autonomy.263 The law of war rhetoric emphasizes sovereign autonomy and territorial concerns while attempting to maintain interdependence.264
Kennedy posits that process discourse should devise a procedure that is both responsive to sovereign will and authoritative over sovereign behavior.265 As with sources doctrine, such a goal is achieved "by blending the two inconsistent tendencies rhetorically within doctrines and arguments."266 Both process and sources doctrines, however, are subservient to substance discourse,267 which also expresses the state sovereignty-international communitarian duality.268
Each doctrine is, therefore, dichotomous in consisting of two rhetorics, one of which reflects the sovereign autonomy and authority of states, the other illustrating the communal, interdependent nature of state relations.269 Although neither rhetoric is preeminent, when viewed in conjunction, the two demonstrate the paradox of international law.270 The cultural nationalism-internationalism polemic exemplifies this paradox: nationalism and its basis in state sovereignty is the "hard" rhetoric;271 and internationalism, which elevates communal concerns and forms an exception of sorts to the dominant nature of nation-states, is the "soft" rhetoric.272
The second constraint on international legal argument273 is the repetitive pattern of dichotomies in international legal discourse and the traditionally "static interaction" between them-such as naturalism-positivism, communitarianism-autonomy, objectivity-- subjectivity, or internationalism-nationalism.274 Critical scholars articulate that the repetition of such a "finite set of dichotomies" reveals that liberalists recognize only these two patterns of argument in international law.275 "The two patterns-or sets of argument-are both exhaustive and mutually exclusive ...."276 Accordingly, no middle ground seems possible due to the airtight nature of the existing two poles.277 Structuralists argue that it is the recurrence of these dichotomies in international law that distinguishes international legal discourse from other forms of argument.278
2. International Legal Indeterminacy
Critical scholars assert the indeterminacy of traditional international legal argument both as a critique and as a negative consequence of the structural tendencies described above.279 They maintain that the rule of law process in liberalism requires decision-makers to apply a (correct) legal theory to a set of facts in order to resolve a specific substantive issue.280 The two main arguments regarding the indeterminacy of traditional legal discourse concern "the indeterminacy of abstraction and the indeterminacy of concrete application."281 Thus, for the law to be determinate, two components are essential: (1) determinate theorizing-for a theory must be shaped in order to decide a case, and (2) determinate application-for a theory must be applied to a set of facts in order to produce a substantive result.282 Critical legal scholars maintain that neither component is possible under liberalism and thus demonstrate the indeterminacy of international law.283
The first critique-positing indeterminate over determinate theorizing-rests on the assertion that "the abstractions of liberalism are contradictory" and is supported by the fact that conflicting theories of international law-such as naturalism-positivism, interdependence-sovereignty, internationalism-nationalism-are continually being advanced.284 Where liberal legalism chooses one side over another, critical jurisprudence claims that "one side of the dichotomies alone cannot survive as an adequate explanation of international law theory, and that the dichotomies are irreconcilable, un-resolvable [sic], or in `fundamental contradiction."'285
New Stream scholars claim that a theory of international law that supports only one flank of the dichotomies cannot be legitimate286 and that one should seek out the "middle ground, pursuing schizophrenic efforts to encompass both sides of the dichotomies."287 Neither side alone is capable of providing the solutions to international legal problems;28 thus, "[i]nternational law employs a pattern of self-referential arguments that continually shift the source of its authority and origin in an effort to navigate between public order and sovereign will."289 The resulting intellectual quagmire, although essentially showing the "negative side" of the structure of such patterns290 and failing to put forward an affirmative vision, is nonetheless more realistic than supporting either side of an argument as mutually exclusive of the other. Selecting one side over another, claim the critical scholars, is not a "process of logical determinacy" but a "process of choosing between theories" and leads to the conclusion that this selection process invariably implicates "political choice" and that liberalism is ideologically biased.291
The second critique of the determinacy of liberal legalism-positing indeterminate over determinate application-is centered on the application of legal doctrines to factual situations.292 Critical jurisprudence outlines the concept of "reversibility of international legal argument" in the sense that a single theory by itself can substantiate different and conflicting resolutions of a legal issue.293 Doctrines are given their substance through a process in which there is no difference between labelling something and deciding something; one equates with the other.294 However, doctrinal "meaning" only emerges when the doctrine is viewed vis-a-vis another interpretation.295 Thus, "[i]n labelling state behavior 'a violation of international law,' one is deciding that the behavior is a violation of another sovereign's liberty. Labelling it the opposite, however, means that it is an extension of the acting state's liberty."296
The cultural property debate lends itself to the reversibility of legal argument by simultaneously putting forward each side of the dichotomies mentioned above: the positive notion of state autonomy and the negative notion of limitation through communitarianism; independence and interdependence; hard rhetoric and soft rhetoric; objectivity of jurisdiction doctrine and subjectivity of participation doctrine.297 Or, as Nigel Purvis aptly describes this tension in the context of self-determination, "an apology for the reality of domestic jurisdiction and a utopian vision of justice."298
This duality, however, is less problematic than one might suspect. Indeed, it would be undesirable to have exclusivity of one or the other component: a global regime dependent solely on state sovereignty could create a perilous anarchy, whereas an interrelated and centralized regime "seems utopian and could be oppressive."299 Kennedy claims instead that the web of indeterminacy and inconsistency deriving from the aforementioned dichotomy actually results in strength.300 Similarly, one could postulate that the nationalism-internationalism dilemma in cultural property law creates a powerful synergy in the international arena through a fusion of the dual concepts.
B. Critical Race Theory
Critical Race Theory is also an offshoot of Critical Legal Studies. To appreciate the former theory, it seems useful to delve into some of the foundational concepts emphasized in the latter. This latter philosophy attempts to connect the legal system to a socio-political-- economic context; one aspect of this involves an excursion into the instrumental theories of the interaction between law and society.30 Two types of instrumentalism are prominent: the liberal and the orthodox Marxist type.302 Under the liberal type, law constitutes a reaction to social demands-often demands from particular interest groups seeking a benefit from the state.03 In this way, "law represents the compromise bargains of multiple conflicting interest groups."304 Under the orthodox Marxist type, "bourgeois law is a product not of just any group's demands but specifically those of the capitalist ruling class."305
In this form, Critical Legal Studies was quickly criticized as unrefined because, among other reasons, capitalists have not consistently dominated in state policy, and ethnic bodies have experienced a degree of affirmative government action espousing their rights.306 Accordingly, some writers started viewing law "as a means of 'legitimating' class society," whereby law was perceived as relatively fair to different bodies of society.307 By extension, one could view the legal system as promising to provide equal protection. Such a universality of the legal system would mean that, to some degree, the system functions separately from economic issues and class systems.30 This view has led to an exploration of the notion that if the significance of law is that it serves "to 'legitimate' the existing order," how exactly does it do that?309
Such an exploration entails looking at how the legal system is both acceptable and unacceptable to different classes of people.olo This analysis involves examining the various belief systems and assumptions people have with regard to topos such as politics, economics, class, employment, and so forth. Scholars argue that these belief systems are paralytic, precluding even the concept of a potentially different or improved life.31 Law constitutes the kind of belief "that convince[s] people that all the many hierarchical relations in which they live and work are natural and necessary."312 One mission of Critical Legal Studies advocates is to expose these interconnecting belief systems3l3 and reveal that legal, political, and economic belief systems are constructed by elitist groups who have promulgated definitions of rights that fortify already existing echelons of wealth and class.3l4 What this analysis leads to is the conclusion that legal systems have been developed by white, Occidental males without adequate consideration for people of a different race, sex, or-by extension-culture. This Article concerns itself with the aspect of Critical Race Theory that deals with the advent of indigenous peoples' human rights under international law, rights that include ownership of cultural property.
Contemporary international legal thought perceives indigenous peoples "as subjects of the exclusive domestic jurisdiction of the settler state regimes that invaded their territories and established hegemony during prior colonial eras."315 Thus, any provisions for protection of indigenous territories, whether with regard to compensation for state appropriation or recognition of ownership of cultural property, are subject to domestic, not international, law. The international legal order has bowed to states' claims of exclusive sovereignty over indigenous peoples' rights to self-determination and survival.316 Until the 1970s, international law, pursuant to the concept of terra nullius-"lands without an owner"-sanctioned states' disregard for the fact that such lands have often been indigenous territories, inhabited by peoples with formed cultures.317 Since the 1970s, indigenous peoples have challenged the exclusive territorial and jurisdictional claims of colonizing nations, thereby demonstrating the desire for recognition of their human rights.318 NAGPRA is illustrative of national human rights legislation reflecting concern and respect for the cultural properties of Native American tribes. It is similarly demonstrative of the successful application of Critical Race Theory advocacy.319
"[C]ritical [R]ace scholars have underscored the need to develop a more sophisticated understanding of the strategic functioning of rights discourse in the social movements of peoples of color."32 Whether by broadening the definition of the term race to include culture or by otherwise incorporating a definition that is not limited to peoples of different races in the United States but applicable on a worldwide stratum, Critical Race Theory is reflected in the recognition of indigenous peoples' cultural rights. This "collective right to exist as distinct peoples with their own cultural identities"321 still awaits universal recognition, although the international community has taken steps in that direction.322
"Law" is just one among many such systems of meaning that people construct in order to deal with one of the most threatening aspects of social existence: the danger posed by other people, whose cooperation is indispensable to us (we cannot even have an individual identity without them to help define it socially), but who may kill us or enslave us.323
This statement essentially articulates the contradictions, as espoused by the New Stream scholars, inherent in every field of law-which itself is an expression of irreconcilable political stances. For each side of a legal dispute, there is another, conflicting, side, and I have attempted to show that each outcome can be equally compelling through reason. Critical Legal Studies demonstrates the constraining structure and indeterminacy of international law, yet reveals that international legal argument does, in fact, have a "structured incoherence or partial determinacy"324 through the co-existence of opposing factions and the apparition of political choice. Nonetheless, a question remains-where does one go from here? Such an exposition of the structure of international law may reveal the "ideological bias"325 of liberal legalism, but critical jurisprudence seems to fail in following its deconstruction of international legal theory with an alternative and affirmative vision.
Taking the oppositional concept to a more tangible-and human-micro-level, the concept of law as reflecting intransigent, unending conflicts can be reduced to the notion of human beings viewing themselves simultaneously as islands of their own, self-sufficient, with the ability to act freely, and as islands with bridges, over which limits are imposed, to other islands, thereby exercising limited power over other islands as well as the ability to protect others or themselves as necessary.326 In sum, limited power is exerted over each island in addition to protection.
Elevating this concept to the realm of cultural property and its issues of protection and access, it appears desirable to blend recognition of state sovereignty with a right of international protection. Integral to this synthesis is the emerging recognition of indigenous peoples' rights and their protection under international law. Although cultural property is already protected by treaties prohibiting illegal import, export, transfer, or destruction during armed conflict, there is a demand for the respect and protection of tribal cultural objects that has yet to be addressed on an international plane.
The contradiction inherent in cultural property law mediates between state sovereignty, national retentive policies, and the ability of the state to act as it desires-including pillage and destruction of its own or another state's cultural property in times of armed conflict-and interdependence between states on a global level, consisting of the imposition of limits on states-when denying access to cultural property and when ignoring preservation requirements-and the ability to protect other states' cultural heritage when necessary. Although proposals relating to the transfer of technology and international intervention may provide some relief to problems of preservation, and treaties may have some effect in diminishing illegal trade and wartime destruction, and while contemporary international legal theory may similarly be unable, at present, to offer a reconciliation of the inherent dichotomies presented as a result of its concept of reversibility, the essential insight presented here is the recognition of the powerful synergy sparked by the union of two opposing concepts that give structure to the incoherence of law.
1. From 1801 to 1812, Lord Elgin, British Ambassador to the Government of the Ottoman Empire in Constantinople until 1803, removed portions of the frieze, metopes, and pediments from the Parthenon and sent them to England, where they were sold to the British Museum in 1816. See John H. Merryman, Thinking About the Elgin Marbles, 83 Mle Fl. L. REv. 1881, 1882-84 (1985) [hereinafter Merryman, Elgin Marbles] (analyzing the legal and moral arguments for and against removal of the Marbles and aligning them with the two schools of thought discussed below, see infra note 2). The Greek government made its first official appeal for return of the Marbles in 1983. Id. at 1882. In May 1997, the Greek minister of culture requested the return of the Marbles from Britain's new Labor government. Jennifer Howard, Objects of Desire: Contested Artifiacts Are the Prize in an International Culture Clash, WASH. PosT, Dec. 14, 1997, at Cl, C5. The Marbles, however, remain on display in the Museum. Merryman, Elgin Marbles, supra at 1882.
2. Professor Merryman coined these two terms to describe the dichotomous views of cultural property, the former viewing such property "as part of a national cultural heritage," the latter "as components of a common human culture." John H. Merryman, Two Ways of Thinking About Cultural Property, 80 AM. J. INT'L L. 831, 831-32 (1986) [hereinafter Merryman, Two Ways]. These terms have been widely accepted and used in subsequent scholarship on the subject of cultural property to embody the two schools of thought in the debate. But see Roger W. Mastalir, A Proposal for Protecting the "Cultural" and "Property" Aspects of Cultural Property Under International lIaw, 16 FORD"AM INT'L LJ. 1033, 1060-62 (1993); infra notes 161-164 and accompanying text (arguing that Merryman's three principles of cultural internationalism-preservation, integrity, and distribution-are primarily property concepts, any internationalist aspect being a secondary consideration, and that his cultural nationalism arguments emphasize the cultural aspect and are only nationalist in that they depend on the cultural bond between an object and a particular community or nation).
3. See generally Sarah Harding, Justifying Repatriation of Native American Cultural Property, 72 IND. I.J.723, 730-38 (1997) (focusing on a U.S. federal law, the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. secs 3001-3013 (1994) and the property issues therein); Stephanie 0. Forbes, Comment, Securing the Future of Our Past: Current Efforts to Protect Cultural Property, 9 TRANSNAT'L LAw. 235, 251-59 (1996) (providing an overview of relevant U.S. legislation and case law); Jason C. Roberts, Comment, The Protection of Indigenous Populations' Cultural Property in Peru, Mexico and the United States, 4 TL)LSA J. COMP. & INT'L L. 327, 335-56 (1997) (discussing Peruvian, Mexican, and U.S. legislation pertaining to cultural property).
4. See generally Paul M. Bator, An Essay on the International Trade in Art, 34 ST.AN. L. REv. 275, 285-99, 30&08 (1982) (describing the magnitude of the problem of illicit trade, the reasons behind it, and the advantages of a licit trade).
5. See Harding, supra note 3, at 749-52, 756-59. 6. Id. at 723-39; Roberts, supra note 3, at 328-31, 347-56. 7. See infra notes 250-272, 297-300 and accompanying text.
8. See Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 240 [hereinafter Hague 1954]; Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, adopted Nov. 14,1970, 823 U.N.T.S. 232 [hereinafter UNESCO 1970]; Convention for the Protection of the World Cultural and Natural Heritage, done Nov. 23, 1972, 27 U.S.T. 40, 1037 U.N.T.S. 152 [hereinafter World Heritage Convention 1972]; International Institute for the Unification of Private Law, Final Act of the Diplomatic Conference for the Adoption of the Draft UNIDROIT Convention on the International Return of Stolen or Illegally Exported Cultural Objects, done June 24, 1995, 34 I.L.M. 1326 [hereinafter UNIDROIT Convention]; see also Claudia Fox, Comment, The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects: An Answer to the World Problem of Illicit Trade in Cultural Property, 9 Am. UJ. INT'L L. & POL'Y 225, 246-51, 25546 (1993) (assessing Hague 1954, UNESCO 1970, and the UNIDROIT Convention); John P. Shinn, Comment, A New Word Order for Cultural Property: Addressing the Failure of International and Domestic Regulation of the International Art Market, 34 SANTA CLARA L. REv. 977, 997-1004 (1994) (suggesting proposals for improving the UNESCO Convention).
9. See infra notes 91-101, 115-118, 228-227 and accompanying text. 10. See John H. Merryman, The Public Interest in Cultural Property, 77 CAL. L. REv. 339, 34543 (1989) (expressing the need for a public policy based on the degree of public interest in cultural property and drawing attention to the ways in which such a policy could be manifested).
11. Ann P. Prunty, Note, Toward Establishing an International Tribunal for the Settlement of Cultural Property Disputes: How to Keep Greece from Losing Its Marbles, 72 GEo. LJ. 1155, 1158 (1984).
12. See Roberts, supra note 3, at 358-60 (proposing a national and international regulated trade in which indigenous peoples would have standing before international tribunals).
13. "Source nations" (also referred to as "art-rich nations" or "countries of origin") are countries in which the supply of cultural artifacts is greater than the domestic demand for such items. As a result, such items are often subject to retention laws; for example, Mexico, India, and Egypt. See Merryman, Two Ways, supra note 2, at 832; Mastalir, supra note 2, at 1036 n.6. "Market nations" (also referred to as "acquisitive nations" or "economically-rich nations") are countries in which the internal demand exceeds the supply of cultural artifacts; for example, France, Germany, and the United States. See Merryman, Two Ways, supra note 2, at 832; Mastalir, supra note 2, at 1035 n.3. Naturally, a nation may be both. The United States, for example, whilst principally a market nation is also a source nation for cultural artifacts associated with American Indian tribes. See Merryman, Two Ways, supra note 2, at 832; see also John H. Merryman, The Retention of Cultural Property, 21 U.C. DAvis L. Rrv. 477, 479-80 (1988) (exploring retention schemes of nation-states) [hereinafter Merryman, Retention].
14. See infra notes 221-230 and accompanying text. 15. See United Nations Convention on the Law of the Sea (UNCLOS), U.N. Doc. A/ CONF.62/122 (1982), revised by U.N. Doc. A/CONF.62/122/Corr. 3 (1982) and A/ CONF.62/122 Corr. 8 (1982), reprinted in 21 I.L.M. 1261 (1982); M. Catherine Vernon, Note, Common Cultural Property: The Search for Rights of Protective Intervention, 26 CASE W. REs. J. INT'L L. 435, 440-45, 471-75 (1994); see also infra notes 180-212 and accompanying text.
There appear to be two fundamental questions in cultural property law-that of ownership, allocation or repatriation of cultural objects and that of preservation and protection of the same. These two questions naturally share some common ground, and I think it fair to view the latter question as derivative of the former. Clearly, a number of the topos listed-treaties, international economics, state sovereignty, and the public interest in cultural property-play into both categories. Similarly, the proposals are essentially aimed at addressing one of the two questions: one can conceive of the proposals for a tribunal and regulation of the art trade as pertaining more to the ownership question and the proposals for technology transfers and international intervention as tailored to the question of protection. I have chosen to delineate these two questions at the outset since much of the material addressing cultural property law fails to mark out precisely which question is being targeted and, in turn, has led to a sometimes confused mass of information from which little attempt has been made to articulate the central issues. 16. The practical implications of the debate also fall into the category of ownership or protection or both. See supra note 15.
17. See Vernon, supra note 15, at 436.
18. The Iraqis looted and destroyed parts of the National Museum of Kuwait during their occupation. See Karen J. Detling, Note, Eternal Silence: The Destruction of Cultural Pro erty in Yugoslavia, 17 MD. J. INT'L L. & TRADE 41, 43 (1993). As a reprisal, Iraq's antiquities and archaeological sites were substantially damaged by the allies. Vernon, supra note 15, at 442.
19. Examples of the damage in Croatia include destruction of the archaeological sites in Vukovar, Split, and the historical town of Dubrovnik. Detling, supra note 18, at 66-68. Both Dubrovnik and Split are listed on the UNESCO World Heritage List as part of the cultural heritage of mankind. See UNESCO World Heritage Convention 1972 List (visited Sept. 16, 1998)
20. The controversy over the ownership of works of art removed by the Soviet army from Germany immediately after World War II has yet to be completely extinguished although progress has been made on that front. In 1997, the Russian Parliament passed a bill impeding the return of "trophy art" to Germany. Following President Yeltsin's refusal to sign the bill, the Russian Constitutional Court gave a ruling in 1998 mandating that the President sign the bill. In addition to Mr. Yeltsin's assertion that the Parliament violated the voting procedure, a representative for the President said that Mr. Yeltsin would contend that the bill's provisions constituted a violation of international law. Looted Nazi Art Stays in Russia, Court Declares, N.Y. TIMES, April 7, 1998, at A10.
21. Illicit trade is segmented into a three-tiered system comprising of acquirers-collectors, dealers, curators, and scholars-at the top level, smugglers at the intermediate level, and looters, or huaqueros, at the bottom tier. Roberts, supra note 3, at 330.
22. Id. at 330-31. Annual estimates of the value of illegally traded cultural property range from $2 billion to $6 billion. Id. In 1988 the U.S. Congress estimated that the annual value of the worldwide illegal drug trade was approximately $500 billion. See Anti-Drug Abuse Act of 1988, Pub. L.. No. 100-690, sec 4102(a)(2), (6), 102 Stat. 4181, 4265 (1988). 23. Merryman, Two \Mays, supra note 2, at 832. Nonetheless, most source nations seek to control exports by implementing retention schemes via expropriation, embargo, or preemption laws. These laws deal respectively with state declaration of ownership of cultural property, prohibition of export, and the designation of a preemptive right to the state to purchase items ready for export. Merryman, Retention, supra note 13, at 477-78. Although such controls may be counter-developmental to the need in many source nations "to earn foreign exchange to pay for imports and to finance domestic growth," the issue here has moved from being exclusively within an individual nation's domestic policy and jurisdiction to being a matter of international concern. Id. at 479. Traditionally, "[t]he non
enforceability of export restrictions abroad can be seen as an application of the principle of private international law that courts of one nation will not enforce claims based on the public law . . . of another nation." Id. at 484. More recently, however, the question-- prompted by source nations-has been: should one nation enforce another nation's export restrictions and, if so, to what degree? Id. at 479-80.
24. My broader goal is to use these jurisprudential ideas not in the abstract but to further an understanding of international cultural property law-in short, wish to illustrate the application of legal theory to actual law. 25. See infra notes 279-300 and accompanying text. 26. Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3001-3013 (1994); see infra notes 102-146 and accompanying text.
27. Merryman, Two Ways, supra note 2, at 831.
28. See UNIDROIT Convention, art. 2, supra note 8, at 1331. The Annex lists the following categories:
(a) Rare collections and specimens of fauna, flora, minerals and anatomy, and objects of palaeontological interest;
(b) property relating to history, including the history of science and technology and military and social history, to the life of national leaders, thinkers, scientists and artists and to events of national importance; (c) products of archaeological excavations (including regular and clandestine) or of archaeological discoveries;
(d) elements of artistic or historical monuments or archaeological sites which have been dismembered;
(e) antiquities more than one hundred years old, such as inscriptions, coins and engraved seals;
(f) objects of ethnological interest; (g) property of artistic interest, such as:
(i) pictures, paintings and drawings produced entirely by hand on any support and in any material (excluding industrial designs and manufactured articles decorated by hand);
(ii) original works of statuary art and sculpture in any material; (iii) original engravings, prints and lithographs; (iv) original artistic assemblages and montages in any material;
(h) rare manuscripts and incunabula, old books, documents and publications of special interest (historical, artistic, scientific, literary, etc.;) singly or in collections;
(i) postage, revenue and similar stamps, singly or in collections; (j) archives, including sound, photographic and cinematographic archives; (k) articles of furniture more than one hundred years old and old musical instruments.
ID. at 1339.
29. See UNESCO 1970, art. 1, supra note 8, at 234-36.
30. Id. at 234.
31. Mastalir, supra note 2, at 1040-41. Exemplary of this is the U.S. definition in the Cultural Property Implementation Act, 19 U.S.C. secs 2601-2613 (1994), which provides that objects are categorized as cultural property only upon separation from or the threat of separation from their cultural ambiance. Mastalir, supra note 2, at 1041. 32. Mastalir, supra note 2, at 1042 ("Not only do states designate what items are cultural property . . . but they are the only entities competent to do so.").
The state-centric element is also apparent in that the cultural significance of objects is determined by "importance for archaeology, prehistory, history, literature, art or science," not by importance to the cultural identity of a people or group. The values stated are largely external to the cultural identity of a people or group. Is the judgment that of a living people, defining for themselves their relationship to the world, or the judgment of external academics applying some sort of absolute criteria? Id.
34. Vernon, supra note 15, at 467. Domestic monetary restrictions, under which a state might prefer to allocate its funds to higher priority areas, may also be a cause of such exclusion. Id. 35. Id
36. Merryman, Retention, supra note 13, at 490. The doctrine of nationalism has been defined as follows:
[T] he doctrine divides humanity into separate and distinct nations, claims that such nations must constitute sovereign states, and asserts that the members of a nation reach freedom and fulfillment by cultivating the peculiar identity of their own nation and by sinking their own persons in the greater whole of the nation.
Id. (quoting E. KEDOURIE, NATIONALISM (1961)). 37. Id.
38. Id at 491-92 ("The way was opened to nation-worship, the adoration of national character, national achievement, national culture, national ambitions, and national policies . . Nationalism justified violence when employed in the national interest."). 39. Id. at 494.
40. The nationalist tendencies of the former Yugoslav republics under their respective leaders constitute but one example.
41. Vernon, supra note 15, at 450-41.
To these ends, unfortunately, national patrimony is sometimes manipulated, its stories and history rewritten in efforts to use the past as propaganda for a current regime. The National Socialist Regime in Germany under Hitler's Third Reich was notorious for its use and abuse of the past for imperialist and racist purposes, invoking the concept of Kulturkreis, the identification of ethnic regions based on excavated cultural materials, and then using this theory to support Nazi expansionist aims in central and eastern Europe.
Id at 451.
42. See supra notes 28-28 and accompanying text. In May 1998, the Sphinx of Giza was unveiled at a ceremony celebrating its restoration. At the ceremony, the director general of UNESCO said: "[The Sphinx] is a witness of our common past and also a symbol of our common future at the dawn of a new millenium." Egypt Celebrates Completion of 10-year Restoration of Sphinx, AGENCE FRANCE PRESSE, May 25, 1998, available in 1998 UTL 2288679 (emphasis added).
43. See Merryman, Retention, supra note 13, at 487-89. 44. Merryman, Elgin Marbles, supra note 1, at 1911. As Merryman rightly points out, however:
(1) the very idea of a Greek nation is a modern creation for which there is little historical basis before the nineteenth century; (2) the Parthenon only became a symbol of Greek nationality in the 1820s; and (3) the assertion by modern Greeks of their identity with ancient Greeks is in this sense a national myth of the modern Greek state.
Id. at 1911-12 n.105. The argument, therefore, that the Marbles belong to present-day Greece is somewhat anachronistic. See infra note 49. Furthermore, if Athens, as a city-state in Greece, had sovereign powers, it may not be farfetched to call the Marbles Athenian rather than Greek.
45. Repatriation refers to a source nation's request for the return of cultural property that is wrongfully abroad. The grounds for this movement are derivative of those underlying UNESCO 1970. Merryman, Two Ways, supra note 2, at 845; see infra notes 67-78 and accompanying text.
46. Merryman, Elgin Marbles, supra note 1, at 1912. 47. Lord Byron's depiction of Elgin, whilst perhaps turning him into something of a Mephistophelean caricature, exerted a powerful influence over contemporary thought surrounding the Marbles controversy. Consequently, Merryman has coined the term Byronism, analogous to the French term Elginisme-referring to a form of vandalism which consists of improperly removing cultural items from their country of origin-to represent the application of romantic nationalism to cultural property. Id. at 1903-05; Merryman, Retention, supra note 13, at 494.
48. Merryman, Elgin Marbles, supra note 1, at 1905. 49. Id. at 1912.
It is not self-evident that something made in a place belongs there, or that something produced by artists of an earlier time ought to remain in or be returned to the territory occupied by their cultural descendants, or that the present government of a nation should have power over artifacts historically associated with its people or territory. Id (footnote omitted).
50. Id at 1912-13. Art stimulates art, artists, and scholarship; it inspires and enhances the lives of ordinary people. Id. at 1913,
51. See id 52. Id. 53. Id
54. Id An interesting analogous argument might be made with respect to nationalist music, which is, of course, performed-and thus accessible-everywhere, and yet the effect of the music is not diluted. The flaw in the analogy, and hence the difference in outcome, is the non-exclusivity of music-different musicians can perform the same work simultaneously in different locations whereas the Marbles, like other items of cultural property, can only be in one place at one time.
55. This is a sculpture that belongs to the Kom tribe of Cameroon and enigmatically appeared for sale in New York. Merryman, Retention, supra note 13, at 495. 56. Id. at 497.
57. The more obvious distinction between these two examples is that the Louvre collection is in France whereas the Kom sculpture had been removed from Cameroon. I think the consequent distinctions Merryman makes would be better served by using the Elgin Marbles as an example rather than the Louvre collection because, like the Kom sculpture, the marbles were also removed.
58. Merryman, Retention, supra note 13, at 497. In December 1998, nineteen items of American Indian art were withdrawn from an auction at Sotheby's "for legal reasons." Another three items were sold to buyers who planned to return the objects to their respective tribal `owners.' As one buyer said: "My interest. . was to return it to its owners. It's a ritual object that has meaning to its community and serves a binding role." Margarett Loke, Sacred and Secular Clash at an Auction, N.Y. TIMES, Dec. 3, 1998, at B3.
59. Id. While this may be true, I have difficulty accepting the exclusion-from such justification-of objects such as the Liberty Bell or, perhaps, the original document that is the Declaration of Independence. I expect many U.S. citizens would be dismayed if these items were exhibited in the British Museum or the Louvre.
60. Id. at 498.
62. See supra note 15.
63. Merryman, Elan Marbles, supra note 1, at 1914.
64. Id. Merryman equates the economic value argument with the legal ownership argument, i.e., the application of property law to the dispute. Id. at 1914-15. He provides a solid historical overview of the facts and argues, rather convincingly, that the British have a better legal claim to the Marbles than do the Greeks. Id. This conclusion is based on the circumstances surrounding the removal of the Marbles: namely, because the British government purchased the Marbles from Elgin, whether Britain's title is good depends on Elgin's title, which, in turn, depends on the legality of the removal. Id. at 1896. Elgin received authorization from the Ottoman government to "tak[e] away any pieces of stone with inscriptions and figures." Id. at 1898. Whilst it is questionable whether the Ottoman government really intended to allow Elgin to remove, among other portions, 247 feet of the frieze, and, in the process, to leave behind considerable damage to the Parthenon, two further incidents support that the Ottomans sanctioned Elgin's actions. Id. at 1896-99. First, the Sultan issued a number of formal written instruments to the civil governor of Athens, ratifying the acts of local officials in allowing Elgin to excavate and dismantle sculptures. Id. at 1899. Second, when one of the shipments of the Marbles did not receive local permission to embark, the Ottoman government granted permission, allowing the shipment to leave for England and thus overriding the initial refusal. Id.
65. Id. at 1915.
66. Id. (quoting Boehm, Nationalism, in 11 ENCYCLOPAEDIA OF THE SOCIAL SCIENCES 231, 231 (1933)).
67. Merryman, Two Ways, supra note 2, at 843.
68. UNESCO 1970, art. 3, supra note 8, at 236. There has been some debate over the meaning of the phrase "contrary to the provisions adopted under this Convention by the
States Parties thereto." Id. The U.S. Senate has interpreted this phrase to mean that the trade is "illicit" if contrary to a party state's law. Shinn, supra note 8, at 984. 69. UNESCO 1970, art. 7(a), supra note 8, at 240.
70. Id., art. 7(b) (i), at 240. The prohibition, however, only applies to "cultural property stolen from a museum or a religious or secular public monument or similar institution . . . provided that such property is documented as appertaining to the inventory of that institution[.]" Id
71. Id., art. 7(b) (ii), at 240. Such return is conditional on the requesting state paying "just compensation to an innocent purchaser or to a person who has valid title ...." Id.
72. Many of these source nations are developing countries. Merryman, Two Ways, supra note 2, at 843. Of the primary market nations, only the United States, Canada, and Australia have become parties. Roberts, supra note 3, at 336.
-wSt-w t: 7? - lb".
79. See supra notes 49-61 and accompanying text. For a discussion of different forms of retention schemes, see also supra note 23. 80. Merryman, Retention, supra note 13, at 498.
81. Id. Merryman provides the example of an illegally-exported French painting to demonstrate this issue. Id. at 498-99. If the painting is not retained in France, then France's general welfare is diminished because a Frenchman would have to travel abroad to view the work-presumably to the detriment of the Frenchman. The key factor, as pointed out by the internationalists, is that the Frenchman's access to the painting is only lost (or reduced) upon export if the work had been publicly accessible while located in France; if the painting had been privately owned, the argument for retention would not work. Similarly, whereas the Frenchman's cultural pride in his awareness that France is culturally well-- endowed may be impaired by export of the work, if the painting were privately owned, it is likely that the Frenchman would not even have known of its existence and, even less, of its removal. Id. Economic arguments in support of retention laws focus on the value of cultural property in the international art market and as a promoter of tourism. One can equally argue, however, that the sale of cultural property by a private owner results in an equivalent economic benefit, and so the nation's economy is not any worse off. As for tourism, the economic loss would only be noticed if the item had indeed attracted tourism and the price upon sale was substantially below the amount generated through tourism. Id. at 500. Thus, the general welfare arguments are not, perhaps, entirely convincing.
82. Presumably, questions as to when a people's general welfare is being fostered and when it is being impaired lie within the sovereign power of the nation to decide. Nonetheless, such issues are conducive to external speculation and comment. 83. Merryman, Retention, supra note 13, at 501. 84. Id at 503.
85. See id. at 503. For example, where parts of architectural monuments are removed, such removal "destroys information, impedes learning, and impairs enjoyment." Id. If removal is achieved, full documentation of the original site is essential to avoid "decontextualization." See id.
86. Integrity of a cultural object means its desegregation, whether by integrating its constituent parts or by placing it in a setting whereby the object's meaning is enhanced. The concepts of integrity and context are closely related. Merryman, Elgin Marbles, supra note 1, at 1918.
87. Merryman, Retention, supra note 13, at 50S04. Merryman concludes by stating that two categories of cultural property can be delineated: those items whose removal impairs preservation, context, or integrity, and those items which can be removed without the danger of impairing the three values. Id. at 506.
88. Id. at 504. 89. Id.
90. Id. at 506-07. 91. Id. at 506. 92. Id. at 506-07.
[M]ere retention of such objects without protective measures, which are expensive and require sustained professional attention, can assure their destruction through neglect, the action of the elements, vandalism, and so on. If sold, traded, or lent abroad, they might enter museums or other environments in which they would be carefully conserved. Id.
93. This is known as "destructive retention" or "covetous neglect." Id at 507. 94. Id.
96. Id at 506-07.
97. Id. at 507-08. Of course, the assumption that a source nation would fund presentation of its cultural heritage necessarily assumes that it has the requisite economic ability to do so. In reality, this may not be the case-or, at least, presenation may not be a priority, see supra note 34, and so it is somewhat simplistic to deduce that retention schemes are not solely motivated by conservation when the reasons may involve more complex economic issues. It would appear that the creation of the World Heritage Fund, see infra note 227, and the proposals for technology transfer, see infra notes 221-230 and accompanying text, have been put forward to address these economic issues. Consider, however, European Union law, which provides an unusual example of a quasi-retention scheme. Article 36 of the Treaty of Rome outlines an exception to the free movement of goods principle, stating that this latter freedom "shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of . . . the protection of national treasures possessing artistic, historic or archaeological value.The final sentence of Article 36 reads: "Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States." Two features are noteworthy. First, a Member State may retain its cultural heritage explicitly-and only-for protection purposes. Second, the last sentence appears to disallow protectionism if the motivation is other than for protecting the art-work. What results is a form of retention solely motivated by conservation interests. Treaty Establishing the European Economic Community, Apr. 24, 1958, art. 36, 298 U.N.T.S. 11, 20[EEC Treaty] (as amended 1991).
98. Merryman, Retention, supra note 13, at 509.
99. See id at 509-10. Such action also impairs the contextual identity of the object with its surrondings. See supra note 85 and accompanying text. 100. Merryman, Retention, supra note 13, at 510.
101. Id.; see also Roberts, supra note 3, at 358-60 (proposing regulation of a licit trade in art).
102. Mastalir, supra note 2, at 1062-63.
103. Id. at 1060-62. Similarly, cultural internationalism, according to Mastalir, emphasizes the property aspect, see supra note 2.
104. 25 U.S.C. 3001-3013 (1994). Passed in 1990, NAGPRA's greatest achievement was to require repatriation of certain Native American cultural property and human remains located in federally funded museums and federal agencies. Mastalir, supra note 2, at 1057-58. Of particular note is the fact that repatriation has been not to the government of a nation-state but to an indigenous people. Id. at 1058.
105. Mastalir, supra note 2, at 1063. NAGPRA was openly promulgated as human rights legislation. Harding, supra note 3, at 739.
106. Mastalir, supra note 2, at 1063. Mastalir claims that the nationalist school of thought, by restricting trade and supporting strict inalienability of cultural property, aims "to ensure that the cultural significance of objects is respected even at the expense of longstanding principles of property law." Id. at 1063-64.
107. Harding, supra note 3, at 724-25.
108. Id. at 725.
109. Id. at 739.
110. Id. at 743. 111. Id. at 725.
112. Id. (citing MargaretJ. Radin, Property and Personhood, 34 ST.4N. L. REv. 957 (1982)). 113. Harding, supra note 3, at 725.
114. Id. at 744. It is argued that these inefficiencies are outweighed by the efficiencies
of tribal ownership because the number of cases where title would be upset are fairly limited, and a museum can rely on its title to the object if repatriation would give rise to a Fifth Amendment Taking. Id. at 748.
115. Id. at 74547. Harding describes the social costs and public moral indignation that can arise in cultural property transactions as external costs or "ethnic externalities." These externalities are both difficult to measure and block the market from realizing efficient results. Id
116. Id. at 747. "Holdouts" refer to situations where an object possesses unique value to a particular group thereby allowing the current private owner to demand a higher price for the item, substantially above its market value, because of its significance to that group. Id.
121. Harding calls this "the concept of `property for grouphood."' Id. at 750. In short, the idea of a relationship between an object and individual identity is extended to encompass the relationship between an object and group identity. Id. at 749.
122. Id. at 750 (citing John Moustakas, Note, Group Rights in Cultural Property:Justifying Strict Inalienability, 74 CORNEL L. REV. 1179 (1989)).
123. Harding, s note 3, at 752.
Hegel, the primary source for [the] theory of property as personhood, would. . . object to [an] inalienability requirement. Hegel's notion of "embodiment" hinges on an act of free will. It is one's will which is embodied in an object in the external world. Only through the assertive, positive force of the will does an object become part of one's personality. The imposition of an inalienability requirement which ignores the will of a community desiring to rid itself of a certain object runs contrary to the initial premise of the theory connecting identity and property.
124. Id. at 755 (citing Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. CHI. L. REV. 711, 774-82(1986).
125. This value refers to educational value-the knowledge can be derived from cultural property-and communal value-whereby a feeling of grouphood is nurtured. Harding, supra note 3, at 755.
128. Id. at 755-56. 129. Id. at 756-58.
130. Id. at 756 (citing Rose, supra note 124, at 774). 131. Harding, supra note 3, at 756.
133. Id. at 757. 134. Id. at 757-59.
135. Id. Depending on the object in question, it may be appropriate to destroy, hide, or bury the item. For example, inthe case of the Zuni War Gods, "the most respectful treatment is destruction or neglect." ID. at 771.
136. Id. at 725.
137. Id. at 760.
138. Id. at 760-63. 139. Id. at 761-62. 140. Id at 766. 141. Id. at 767. 142. Id. at 768. 143. Id.
144. Id. at 769. Indeed, "[o]ur common heritage is, if anything, our ability to appreci
ate the beauty and integrity of another culture[,] and so it should be with an eye on preserving cultural integrity that we go about understanding and dealing with cultural property." Id. 145. See id. at 770. 146. Id. at 771.
147. Merryman, Two Ways, supra note 2, at 831.
148. Even if this situation does not go beyond the realm of a hypothetical, where neither the source nor the acquiring nation has the stronger claim, a further question arises: how does one know when these arguments are equalized, and can one clearly distinguish between legal and moral arguments in the first place?
149. Merryman, Elgin Marbles, supra note 1, at 1916-17.
150. Id. at 1917.
153. Id, at 1918; see supra note 86 and accompanying text.
154. Merryman, Elgin Marbles, supra note 1, at 1918.
155. Regrettably, the issue of economic distribution arises once more since one cannot equate an intent to preserve with the ability to do so.
156. Merryman, Elgin Marbles, supra note 1, at 1919 ("The masterpiece is better dismembered than destroyed or seriously damaged."). Merryman refers to the three named principles as "[t]he values of cultural internationalism." Id at 1921. While I agree that the principle of integrity is a necessary consideration in making an allocation determination, I question Merr,man's inclusion of the integrity principle as an integral component solely of internationalist dialogue since it is likely that integrity would, in many instances, lean in favor of location of the object in the source nation; therefore, this principle could also be successfully adopted by the nationalist school. See supra note 86-87 and accompanying text. This flexibility between nationalist and internationalist dialogue is best viewed by looking at the nationalist and internationalist schools as situated along a continuum. The fluidity of movement between the two ends provides an example of the reversibility of international
legal argument that is more fully explored in the discussion of Critical LI.egal Studies infra notes 279-300 and accompanying text.
157. Merryman appears to use the terms "distribution" and "access" interchangeably. However, although they are interrelated, they are not synonymous. Distribution is a question of allocation of cultural property between nations. Access, on the other hand, has two meanings. In the internationalist sense-and I believe this is Merryman's intended use-- access is dependent on distribution since it deals with making cultural property accessible to all people. In the nationalist sense, access to cultural property is dependent on the source nation's policies and ability to display its artifacts-for instance, there can be no access in cases of "covetous neglect" or in the hoarding of undisplayed objects-and so it is separate from the distribution question, which may not even be reached.
158. Merryman, Elgin Marbles, supra note 1, at 1919. "We need [cultural property] to tell us who we are and where we came from, to nourish creativity and enrich our lives, to discredit myths of racial and national superiority in cultural achievement, to demonstrate our common humanity." Id at 1923. 159. Id. at 1919-21.
160. Id at 1920-21. Indeed, this domestic portion alone entails substantial costs to Greece of conservation and display. Id.
161. See Mastalir, supra note 2, at 1060. For example, the principle of preservation could be articulated by the repose principle of property law: the Marbles are probably safer in London than in Athens because, if relocated to an Athenian museum, there are risks in removal and transportation, and there is no compelling justification to think that they would be better cared for in Athens than they have been in London for the past 180 years. Merryman, Elgin Marbles, supra note 1, at 1917. Of course, the principle of repose is more often used in the reverse situation and supports the argument for retention by the source nation where the object is still in its nation of origin. This is another example of the reversibility of international legal argument as put forward by Critical Legal Studies scholars. See supra note 156 and infra notes 279-300 and accompanying text. 162. See Mastalir, supra note 2, at 1060-61. 163. Id.
164. Id. at 1061.
165. Bator, supra note 4, at 306.
166. Id. at 306. "[Art] stimulates interest in, understanding of, and sympathy and admiration for that country." Id. 167. Id. at 307.
168. Id. ("The creation of new art, as well as aesthetic and historical scholarship, can be stimulated by the possibilities of comparison and juxtaposition made possible by the acquisition of foreign art.").
169. Id. at 308. It should be noted that some of these arguments could also be made in support of retention by the source nation, namely that "home" art stimulates domestic scholarship and generates a resonant intellectual life, as well as inspiring the creation of more art. Id. at 305-06. Again, this is exemplary of the reversibility of international legal argument. See supra note 156 and infra notes 279-300 and accompanying text.
170. Bator, supra note 4, at 308. See Roberts, supra note 3, at 35&60 for a proposal to regulate the trade in cultural property as a response to the prohibition of trade. Such a prohibition does nothing to diminish the demand for art-works and only serves to perpetuate the destruction and looting of cultural objects. While Roberts focuses on allowing indigenous peoples to assert control over their cultural heritage and to designate objects that may not be traded, "[a] licit trade in cultural property could fund preservation and education programs aimed at protecting antiquities barred from the market." Id. at 359. Such a trade could assist source nations in terms of retention and preservation, scholars would be better served by the resulting maintenance of sites, indigenous peoples would have greater protection of their property, and acquiring nations could purchase lawfully exported artifacts and decrease the risk of political embarrassment. Id. at 360.
171. Merryman, Two Ways, supra note 2, at 836. Note the language used in the Preamble:
Being convinced that damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes it contribution to the culture of the world;
Considering that the preservation of the cultural heritage is of great importance for all peoples of the world and that it is important that this heritage should receive international protection;
Hague 1954, pmbl., supra note 8, at 240 (emphasis added). This language suggests preclusion of "nationalistic or exclusionary claims" to property based solely on geographical location. Vernon, supra note 15, at 458.
172. Vernon, supra note 15, at 457-58. It was during the nineteenth century, spurred by the extensive looting carried out by the French during the Napoleonic wars to supply the Louvre with art-works, that the "arts and sciences" became an exception to war rights and were designated as worthy of protection. Stanislaw E. Nahlik, International Law and the Protection of Cultural Property in Armed Conflicts, 27 HASTINC;s LJ. 1069, 1071-72 (1976) (citing 7 J. MooRE, A DICE.ST OF INTERNATIONAL LAw 200 (1906)). The Lieber Code of 1863 was one of the most influential instruments concerning the protection of cultural property. Id. at 1072. In 1899 and 1907 respectively, two conferences convened at the Hague, the discussions of which were embodied in the Convention with Certain Powers, with Respect to the Laws and Customs of War on Land and the Convention with Other Powers Respecting the Laws and Customs of War on Land, dealt with protection in similar terms. Id. The Nuremberg International Military Court recognized the annexed Regulations to both conventions as so indicative of a general custom of international law as to bind even states not parties to the conventions. Id. There was an exception to the prohibition against "destruction or seizure of enemy [cultural] property" for military necessity that Hague 1954 maintained. Id. at 1084-85. In 1935, the United States and other American nations promulgated a treaty (generally known as the Roerich Pact), which was the first convention dealing solely with cultural property protection. Id. at 1075. This treaty, however, has had little effect. Id. 173. Merryman, 7wo lays, supra note 2, at 841. 174. Vernon, supra note 15, at 459. Vernon claims that Hague 1954's "failure to proside rights of protective intervention to states not parties to the conflict" accounts for the treaty's inability to prevent the destruction of cultural property in recent conflicts. Id. at
459-60. To date, non-combatant states concerned with protecting the common cultural heritage of mankind have been powerless to intervene, yet combatant states have either spurned their treaty duties by not protecting cultural property or are not parties to the Convention. Id. at 460.
175. World Heritage Convention 1972, supra note 8. Vernon also notes the language of Article 1 of the European Cultural Convention, Dec. 19, 1954, 218 U.N.T.S. 139 (1955), which recognizes a "common cultural heritage of Europe." Id. In addition, each party shall "regard the objects of European cultural value placed under its control as integral parts of the common cultural heritage of Europe, shall take appropriate measures to safeguard them and shall ensure reasonable access thereto." See Vernon, supra note 15, at 461 (quoting the European Cultural Convention, supra, art. 5).
176. See Vernon, supra note 15, at 468. 177. Id. at 468. The Preamble states:
Considering that deterioration or disappearance of any item of the cultural or natural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world, . . .
Considering that parts of the cultural or natural heritage are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole, . . .
World Heritage Convention 1972, pmbl., supra note 8, at 152-53 (emphasis added). 178. Vernon, supra note 15, at 471. Article 6 of the Convention states:
Whilst fully respecting the sovereignty of the States on whose territory the cultural and natural heritage . . . is situated, and without prejudice to property rights provided by national legislation, the States Parties to this Convention recognize that such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-operate.
The States Parties undertake. . . to give their help in the identification, protection, conservation and preservation of the cultural and natural heritage . . . if the States on whose territory it is situated so request.
World Heritage Convention 1972, art. 6, supra note 8, at 154-55 (emphasis added). Notwithstanding the deference to the host nation, certain clauses emphasize the role of the international community, and it is difficult to see how both positions could be given effect simultaneously without compromising each other. This conjunction of both internationalist and nationalist positions is explained under Critical Legal Studies analysis as the "fundamental contradiction" of the dichotomy presented. See infra notes 279-300 and accompanying text.
179. Vernon, supra note 15, at 471.
180. Id. at 437-38. 181. Id. at 43S37. 182. Id at 437.
183. See id.; see also id. at 44245 (mentioning examples of destruction and pillage as a consequence of the recent conflicts in the Persian Gulf and the former Yugoslavia). Since cultural property can be of cultural significance to more than one state, the concept of common cultural property is meaningless when international laws and treaties do not prevent destruction by a host state, or allow entry by foreign groups or states for enforcement of common interests in that property.
184. Id. at 437. 185. Id. at 445-54. 186. Id. at 445.
187. Id. at 44546.
188. Id. at 44647. See supra note 49. Cultural property is, after all, made by people, not states. I would argue that the notion of a creator-or, in some cases, a genius-transcends state boundaries.
189. Vernon, supra note 15, at 446. Vernon notes the language of a United Nations Covenant on Human Rights, which "`recognize[s] the right of everyone: (a) To take part in cultural life,'" and she concludes that cultural rights are human, as opposed to territorial, rights. Id. at 446 n.48 (quoting the International Covenant on Economic, Social, and Cultural Rights, 1966, art. 15, 6 I.L.M. 360, 365). It is interesting to observe how an analogy to human rights can be made from both internationalist and nationalist positions. See supra notes 102-106 and accompanying text. This again demonstrates the reversibility of international legal argument discussed supra note 156 and infra notes 279-300 and accompanying text.
190. Vernon, supra note 15, at 447. That is, non-military in the sense of non-physical force. 191. Id.
192. The conditionality of loans from the International Monetary Fund would be an example of interference with absolute sovereignty-or, at least, a limitation on the exercise of sovereignty-even though, at some level, the sovereign consents.
Since the l9th century's populist nation state became the 20th century's mass consumer society, the problem is not to 'stop' intervention but to turn it from a military or quasi-military force into a civilian process and from a civilian process in which there is a strong sense of exploitation into one of joint decision-making .... Final world-wide legal order can be furthered by constructive intervention of states or international organisations.
Id. at 447 n. 50 (quoting Louis G.M. Jaquet, Introduction, in INTERVENTION IN tN INTERNATIONAL POLITICS, vii (1971)).
194. Vernon, supra note 15, at 448 (quoting R.BJ. \VAI KER, ONE WORLD, MANYWORLDS: STRUGGLES FOR A JUST WORLD PEACE 165 (1988)); see also Mastalir, supra note 2, 1081-85 (discussing use of the protection of the ozone layer as a model for technology transfer); infra notes 221-227 and accompanying text.
195. Vernon, supra note 15, at 448. "A primary assumption underlying the doctrine of sovereign equality and nonintervention is that, to avoid outside interference, nations must be fully equipped to manage their own affairs." Id. In reality, however, the world crosses the spectrum between developed and developing countries, and if a state does not provide adequate protection to cultural objects located within its territory, that state's position as a "sovereign equal" is undermined. Id; see L.N. CHARTER art. 2, para. 1 ("The Organization is based on the principle of the sovereign equality of all its Members.").
196. Vernon, supra note 15, at 449.
197. Id. 198. Id.
199. Id at 450. As noted earlier, supra notes 91-97 and accompanying text, this can result in the "destructive retention" or "covetous neglect" of mankind's cultural heritage. See Merryman, Retention, supra note 13, at 506-08.
200. These policies include laws mandating inalienability of cultural objects and the policy of hoarding items for no apparent reason. Vernon, supra note 15, at 451-52. 201. Id at 453.
202. Id 203. Id
204. UNCLOS, supra note 15; Vernon, supra note 15, at 471-79.
205. UNCLOS, pmbl., supra note 15, at 1. UNCLOS states that "exploration and exploitation of [the sea-bed and ocean floor] shall be carried out for the benefit of mankind..." Id.; see Vernon, supra note 15, at 471; see also Article 136 of UNCLOS, supra note 15 (stating that "[t]he Area and its resources are the common heritage of mankind"). 206. Vernon, supra note 15, at 472-73. See Article 303 of UNCLOS, supra note 15 ("States have the duty to protect objects of an archaeological and historical nature found at sea and shall co-operate for this purpose."). 207. Vernon, supra note 15, at 473.
208. Id. at 47,74. "Under this scenario, the commons of the high seas would not be open to the whims of the users and exploiters, but would be internationally administered for the common good." Id. at 474.
209. Id. 210. Id
211. Id. Vernon notes that [1l]imitations placed on freedom of the high seas to protect archaeological remains have been considered only slight intrusions on the sovereignty of the high seas since the benefits of protecting the world heritage more than offset the intrusion." Id. at 475.
213. See Joseph L. Sax, Is Anyone Minding Stonehenge? The Origins of Cultural Property Pro tection in England, 78 CAL. L. REv. 1543, 154354 (1990) (providing a detailed historical overview of the "Lubbock bill"). 214. Id. at 1545, 1547.
215. Id. at 1547. The "loss of antiquities, mostly Roman and prehistoric remains that were being dismantled for their stones or plowed under for housing developments" was notably prevalent; nearly all such sites and monuments were under private ownership and were not protected under English law. Id at 1545-46. 216. Id
217. Id at 1549.
218. See id. 219. Id. at 1553.
The implicit theory of the bill was that property had two distinct elements. The element that belonged to proprietors was the economic value or use value of their property. . . . The monuments had another element, however-namely, their historic and scientific value-which belonged to the nation. The idea was that the history of England . could hardly be said to belong to some individual, In preventing the destruction of its history, the nation was not taking something away from the owner, but was safeguarding something of its own. Id. at 1554 (emphasis added).
220. Lubbock's vision was finally embodied in full in the present 1979 law, under which identified monuments are listed on a preservation schedule and any undertaking that causes damage to or destruction of the monuments is an offense. The Secretary of State may purchase any monument and ensure that the public has access to such acquired monuments. Id. at 1566-67. 221. Mastalir, supra note 2, at 1071. 222. Id. at 1071-72.
223. Id. at 1071. Detailed reference is made to NAGPRA and the notion that respect for the human rights of source nations and peoples mandates repatriation of objects when a group's representatives claim cultural affinity with the property. Id. at 1072-74; see supra notes 102-146 and accompanying text. 224. Mastalir, supra note 2, at 1071-72.
225. Id. at 1074-75.
226. Id. at 1079-80. Mastalir notes the conflicting interests in both contexts. The conflict in the ozone depletion issue manifests itself in the desire of developing countries to persist in economic development while striving to establish a stable environment, as advocated by developed countries. Id. at 1080-81. The conflict in the cultural property debate is between source nations' interest in protecting the cultural aspect of cultural property and market nations' interest in physical protection of the same. Id. at 1081. "In each case, it is a resource of the [lesser developed countries] that is subject to exploitation and technology from the developed nations that is necessary to resolve the problem." Id.
227. Mastalir, supra note 2, at 1074-77. A set of treaties, protocols, and declarations have established technology exchange programs and technical assistance implementation. Id. at 1078. See also James A.R. Nafziger, The New International Legal Framework for the Return, Restitution or Forfeiture of Cultural Property, 15 N.Y.U.,J. INT'L L. & POL. 789, 812 (1983) (recommending bilateral agreements as a solution to the cultural property problem).
228. Id. A number of international organizations, such as the International Monetary Fund, UNESCO, and the World Heritage Fund, would be competent to deal with transfer of funds and technology. Id. at 1084. 229. Id. at 1081-82.
230. Id. at 1083. Such an arrangement would serve two of the principles put forward by Merryman in advocating cultural internationalism-access and distribution. The third principle-preservation-is, naturally, also served. Id. For a discussion of the issues regarding conservation of biological resources and the Convention on Biological Diversity, which aims to encourage "a voluntary redistribution of financial, technological and informational resources from developed nations to developing nations[,]" within this context, see also Forbes, supra note 3, at 267-70. In return, "developed nations are granted access to biological resources often located within territories of developing nations, upon agreed terms and subject to the provisions of the Convention on Biological Diversity." Forbes, supra note 3, at 268. Of particular interest is Forbes' conclusion that "cultural nationalism and internationalism are not mutually exclusive but rather complementary to one another; both serving to
prevent the disappearance of our historical and cultural evidence in both the immediate and distant future." Id. at 270. The synergy produced by the co-existence of both schools of thought is discussed in light of Critical Legal Studies analysis infra notes 299-300, 326326 and accompanying text.
231. See David Kennedy, A New Stream of International Law Scholarship, in INTERNATIONAL RULES: APPROACHES FROM INTERNATIONAL LAW AND INTERNATIONAL RELATIONS 230 (Robert J. Beck et al. eds., 1996). While Critical Legal Studies has focused on United States domestic law, the New Stream has drawn on Critical Legal Studies and applied it to international law. Id. at 227.
232. Nigel Purvis, Critical Legal Studies in Public International Law, 32 HARV. INT'L LJ. 81, 88 (1991).
233. Id. at 98-105.
234. Id. at 105-09. Critical jurisprudence also advances two other arguments-"that the logic of liberalism in international law is internally incoherent . . . [and] that whatever authority international law may have is self-validated." Id. at 92. These arguments, however, are not directly relevant to the cultural property debate and are outside the scope of this Article.
235 Id. at 98.
236. At the same time, international law is itself molded by the structure of international legal argument." Id. at 102.
237. Nigel Purvis summarizes the essence of structuralism as follows: Structuralism purports to study the process of creating meaning (bricolage). Structural theorists believed that communicative words (parole) were structured by a deeper language (langue). They explained that those who create meaning (bricoleurs) do so without acknowledging that they are creative at all. Bricoleurs manipulate the deep structures of the langue to create what seems like a mere description at the parole level.
Id. at 102 n. 98.
238. Id. at 102.
239. Id. at 105.
241. Id. at 102-03.
242. Id. at 103.
243. Id.; Kennedy, supra note 231, at 241.
244. Purvis, supra note 232, at 103: Kennedy, supra note 231, at 241.
245. Kennedy, supra note 231, at 241.
246. Purvis, supra note 232, at 103.
250. Kennedy asserts his aim of "reformulat[ing] the relationship between law and politics in rhetorical terms." Kennedy, supra note 231, at 236. Mine is a relational and rhetorical image of a "law" and a "society"-invoked by a language which establishes them by positing their originality, their priority, their presence. My sense is that this rhetorical project . . . accounts for the doctrinal structures of "public" and "private" or "objective" and "subjective" which we find recurring throughout international public law doctrine ....
251. The New Stream, supra note 231, at 227.
252. Id. at 228.
254. Id. (emphasis added).
255. Kennedy supra note 231, at 243.
256. Id. "The important thing is the co-existence of these two rhetorics-and the relationship between them. Each must temper the other and the discourse as a whole must seem to move forward from autonomy to community." Id.
257. Id at 245. 258. Id.
259. Id. at 244.
By seeming objective, jurisdiction doctrine, the doctrine responsible for limiting sovereign authority, can seem differential to state power . By seeming subjective, participation doctrine, the doctrine responsible for registering and recognizing sovereign authority can appear to establish a communal, legal control over the membership process.
Id. at 245.
260. Id. at 246.
262. Phillip R. Trimble, International Law, World Order, and Critical Legal Studies. 42 STAN. L. REV. 811, 830 (1990).
263. Kennedy, supra note 231, at 246. Kennedy posits UNCLOS as demonstrative of peace law. See id. at 247; Trimble, supra note 262, at 830-32.
264. Kennedy, supra note 231, at 246.
265. Trimble, supra note 262, at 828.
267. Kennedy, supra note 231, at 246. 268. Trimble, supra note 262, at 829. 269. Id. at 824.
270. Id. at 824-26; see supra note 254 and accompanying text. 271. Trimble, supra note 262, at 825.
272. Id. Trimble uses the example of the binding nature of a treaty as demonstrating sovereign consent to be bound versus the exceptions to treaty performance due to duress or circumstantial change. These exceptions 'embod[y] nonconsensual concerns that are important to maintaining community and interdependence .... Id. 273. See supra notes 238-240 and accompanying text. 274. Purvis, supra note 232, at 104. 275. Id.
276. Id (citing MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA: THE STRUCTURE OF INTERNATIONAL LEGAL ARGUMENT (1989) at 40-41). 277. See Purvis, supra note 232, at 104. 278. Id at 10605.
279. Id. at 105. 280. Id. at 105-06. 281. Id. at 105 (emphasis added). 282. Id. at 106.
285. Id. (quoting Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L., REV. 205, 211 (1979)).
286. Purvis, supra note 232, at 160.
287. Id. at 107.
288. For example in the World Heritage Convention 1972 that embodies both nationalist and internationalist strands, see supra note 178.
289. Purvis, supra note 232, at 107. 290. Id. at 107.
291. Id. at 108. Traditionalists' main criticism of New Stream analysis is that it fails to reconstruct international legal argument following its deconstruction of the same and so is "incapable of invigorating the discipline of international law." Id. at 115. Punis imaginatively suggests that the New Stream's "ideal vision" of "international discourse as a tool of international development" conflicts with its foundations, for in seeking, through discourse, a utopian end to "poverty, totalitarianism, racism, sexism, illness," and so forth, the New Stream itself succumbs to the reality of political choice because it is incapable of offering "the world a basis for accepting one morality over another." Id. at 11S18.
292. Id. at 108.
296. Id. at 108-09.
297. For examples of reversibility on a smaller scale in the context of the cultural property debate, see supra notes 156, 161, 169, and 189.
298. Purvis, supra note 232, at 109. 299. Trimble, supra note 262, at 829.
300. Id. at 830; see also supra note 229 (mentioning the complementary relationship of nationalism and internationalism in the cultural property debate).
301. See Robert W. Gordon, New Developments in Legal Theory, in THE POLITICS OF LNw: A PROGRESSIVE CRITIQUE 413, 416 (David Kairys, ed., 1990).
302. Id. 303. Id. 304. Id.
305. Id. "In both versions, a 'hard' world of economic actions (or `material base') determines what happens in the 'soft' world of legal rules and processes (as part of the ideological 'superstructure')." Id.
306. Id. at 417. 307. Id 308. Id
309. Id at 418. 310. Id
This is Antonio Gramsci's notion of "hegemony," i.e., that the most effective kind of domination takes place when both the dominant and dominated classes believe that the existing order, with perhaps some marginal changes, is satisfactory, or at least represents the most that anyone could expect, because things pretty much have to be the way they are.
311. Id. It's not that ideology grugs the masses int thinking that their rulers and bosses are ideal, that life is fair and that everyone deserves his fate. Most ordinary people may well think that the system plays with a stacked deck and that the deal they got is a lousy one.
313. Id. at 419 ("The way human beings experience the world is by collectively building and maintaining systems of shared meanings that make it possible for us to interpret one another's words and actions."). 314. Id.
315. Robert A. Williams, Jr., Encounters on the Frontiers of International Human Rights Law: Redefining the Terms of Indigenous Peoples' Survival in the World, 1990 DUKE LJ. 660, 664 (1990). "At present, international law does not contest unilateral assertions of state sovereignty that limit, or completely deny[,] the collective cultural rights of indigenous peoples." Id. (emphasis added).
316. Id. at 665.
317. Id. at 688-89. However, not unlike tribal affiliation with certain cultural objects, there is often an almost umbilical bond between the "spiritual and material foundations" of indigenous tribes' cultural identities and "their unique relationships to their traditional territories." Id. at 689. If one extends the notion of territory to include culture, one may equate non-recognition of territories with non-recognition of culture and, hence, cultural property.
318. Id at 667 ("This vision seeks international legal recognition of indigenous peoples' collective human rights to exist as culturally autonomous peoples, to continue in the peaceful possession of their traditionally occupied territories, and to exercise greater self-- determining autonomy over their ways of life.").
319. What is poignantly lacking, however, is a similar concern for tribal communities in Latin America, Africa, Asia, and Australasia, whether on a national or international level. 320. Williams, supra note 315, at 701. 321. Id. at 686.
322. See Discrimination Against Indigenous Peoples: First Revised Text of the Draft Universal Declaration on Rights of Indigenous Peoples, U.N. ESCOR, 41st Sess., Agenda Item 13, U.N. Doc. E/CN.4/Sub.2/1989/33 (1989). 323. Gordon, supra note 301, at 419.
324. Purvis, supra note 232, at 114. Partial determinacy-or incomplete indeterminacy-refers to New Stream scholars' conclusion that the structure of international legal discourse, while not determinate, nonetheless "acts like a set of bookends, defining the scope of indeterminacy." Id. In essence, limits are imposed on international legal decisionmaking, and such a structure prevents it from being "wholly open." Id.
326. "No man is an island, entire of itself; every man is a piece of the continent, a part of the main." THOMAS MERTON, NO MAN IS AN ISLAND 21 (1955) (quoting John Donne).
* Associate, White & Case LLP, J.D., The George Washington University Law School 1998. This Article is based on a paper written for the Public International Law Seminar held by Professor Ralph G. Steinhardt at The George Washington University Law School. I wish to express my gratitude to Professor John C. Knechtle, Professor Lawrence E. Mitchell, Todd Rosenthal, Esq., and Professor Ralph G. Steinhardt for their many useful insights and comments.…