A Proposal for Protecting the Cultural and Property Aspects of Cultural Property Under International Law

The central focus of this paper is a proposal for rebalancing protection of cultural property so as to take into account preservation of the cultural as well as property aspects of cultural property. Part I distinguishes between cultural and property aspects of cultural property and demonstrates how both aspects are important to an appropriate resolution of cultural property issues. Objects of cultural property cannot be stripped of their cultural significance. They are not merely items of property any more than children are the property of divorcing parents. Recognition of cultural significance is an integral part of determining the best means of protecting cultural property. This Part considers the property orientation of the generally accepted definition of cultural property. In addition, Part I considers subsidiary issues raised by the dichotomous nature of cultural property. Part II describes the current international legal regime for protecting cultural property and demonstrates the failure of this regime to give adequate consideration to the cultural aspect of cultural property. Part III identifies two schools of thought concerning cultural property. The first school of thought, usually identified as cultural internationalism, is primarily concerned with physical preservation of objects.2 This school articulates concerns in terms of property law principles. The arguments of acquisitive nations, 3 museums, collectors, and archaeologists, all of whom seek to protect their holding of or access to cultural property for aesthetic, scholarly, educative, or merely possessory purposes, generally belong to this school of thought. The property law principles they espouse include rights of title, possession, conquest, repose, and bona fide purchase. The second school of thought, usually termed cultural nationalism, is primarily concerned with the cultural significance of cultural property.4 Its arguments are often framed in terms of principles of human rights law. The demand is for cultural dignity and cultural self-determination. Arguments for repatriation of objects of cultural significance to source nations 6 or to peoples belong to this school of thought. This paper asserts that the disputes between these schools of thought are really disputes over which aspect of cultural property deserves greater legal protection. Although the common ground between these two camps is concern for preservation of objects of cultural significance, preservation means different things to different interests. Part IV proposes a new legal regime founded on the common ground between these schools of thought. This Part suggests two approaches to the problem of protection of cultural property working in tandem. The first is a reaffirmation of the preeminence of human rights principles in resolving cultural property questions. The second approach, from the model of environmental protection, addresses the problem by reflecting global concern. The proposal is for a program of transfers of funding and technology to protect the best interests of cultural property for the benefit of interested groups, as well as the world community. Part V presents an assessment of the effectiveness of the proposal in protecting both the cultural and property aspects of cultural property and the likelihood that the regime will be acceptable to the world community