Cultural property

Earliest protection was Roman times

Leiber code --> first attempt to try to get a little bit of peace time values into war --> idea that culture should be protected even in wartime

Side effect of war is destruction of culture --> e.g. looting of Iraqi museums or Talibon blowing up Buddha statutes in Afghanistan

Move from narrow definition to wide one over the years

Rare collections and specimens of many different types of things can be cultural property

Piece of art if not held in national museum or government property etc is private property --> not cultural property --> cannot be sued for daamging or modifying it

Should cultural artefacts be thought of as culture or property?

Theories of property are also theoris of personhood in sense that property is one way of telling ourselves and each other who we are (Locke, Hegel)

Cultural property brings these issues into sharp relief --> but is ownership the right language for culture and identity?

1954 Hague Convention --> cultural property = movable and immovable cultural property/heritage --> includes monuments, sites, objects etc 

Private law --> issues of good title and legal transfer --> traditional property and contract law doctrines

International law --> 3 conventions

1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict

1970 UNESCO Convention for Prohibiting the Illicit Import, Export and Transfer of Ownership of Cultural Property

1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects

Identity

• possessing or appropriating identity
• 'possessive nationalism' - derived from theories of 'possessive individualism'
• contrasted with arguments regarding 'the common cultural property of all mankind'
• in litigation, arguments regarding cultural property turn on identifying the origins of the object and determining the proprietary rights that attach to it
• Eurocentric ideas that may disadvantage indigenous peoples who have been subject to colonisation --> in order to justify repatriation, they have to show that property is an integral part of their historically continuous identity --> difficulties due to assimilation

Cultural nationalism

• 'particular peoples have particular interest in particular properties, regardless of their current location and ownership'
• underlying principle of 1970 UNESCO Convention
• employs European logic of possessive indivdiualism when it claims objects as essential to identities and elements of authentic tradition
• possessive individualism increasingly dominates language and logic of plitical claims to cultural autonomy
• modern indivdiual as defined by property she possesses --> extended furhter to nations and ethnic groups --> imagined as 'collective individuals'
• under cultural nationalism, a group's survival, its identity or objective oneness over time, depends upon secure possession of a culture embedded in objects of property

Cultural internationalism

• cultural property of any people = common cultural heritage of mankind
• 1954 Hague Convention preamble
• 'cultural heritage of all mankind' --> all have an interest in it
• nation is vulnerable to same criticism as cultural nationalism --> appearence of:
  • political agendas
  • commodification by art dealers and museum curators
  • Eurocentric bias

The uses of past and the commodification of 'heritage'

• what are the purposes or uses of the past and how doesp property law play into them?
• do we necessarily make property out of things/histories/identities that we value?
• can 'heritage' be commercial selling point for businesses, industries and environmental sites?
• tension between various derivations of the value of things
• commodification -->
  • literal and metaphorical markets merge into each other
  • dependent upon acceptance of 'market rhetoric' -->'discourse in which we conceive of and speak of something as if it were a commodity subject to market exchange'

• Parthenon Marbles --> no such thing as Elgin Marbles
• Elgin used bribery and corruption and influence to obtain firman
• suggestion to take whole thin but no ship available
• appeal to friendship between Britain and Greece --> Greeks fought for Britain
• in interests of 'fairness and morality' Britain should return the marbles

Arguments against return and rebuttals

(1) marbles obtained by proper transaction

• bribery and corruption = not proper
• is it proper to transact with Turks for Greek cultural property whe Greece is under Turkish invasion and subjugation?

(2) Greeks were ignorant and indifferent to their art and monuments

• examples of Greek decisions to protect property
• after independence gained, one of first Acts passed by Greek govt was for protection and preservation of national monuments

(3) Modern Greeks are not descendants of Pericles --> just crazy

(4) If marbles returned, it will set precedent that could lead to emptying of museums

• who is going to ask and who is going to permit the emptying of museums
• very name of countr is immediately associated with Parthenon
• Marbles are specific to Greek identity
• International Council of Marbles recommend return

(5) Pollution of Acropolis

• wouldn't be reset --> displayed in museum with most developed systems of security and preservation
• quality of work and skills of Greek restorers = well recognised

(6) Removing the marbles saved them from barbarous Turks

• Turks gave no permission to E to remove sculpture from works of walls of citadel
• Barbarism of English in removing them

Appointed to study proposal made by Lord Elgin

E offered to sell marbles to govt

Committee had to decide -->

• by what authority collection was acquired
• under what circumstances the authority was granted
• merit of marbles as works of art
• how much should be spent for an eventual purchase

Bulk of testimony asked for was how good were the marbles and how much should be paid for them

Circumstances of transaction ahd to be shown to be proper and marbles had to have been obtained by E, the private citizen, and not by influence as British Ambassador

• opinions stated position of ambassador was reason for E being able to obtain marbles
• but committee still decided that Elgin was acting in character distinct from professional position

Cultural property = objects that have artistic, ethnographic, archaeological or historical value 

Most nations control cultural property in interst of its retention, preservation, study, enjoyment and exploitation --> 2 strategies --> 

Declaration of ownership strategy 

• state declares itself owners of all cultural property of kind it wishes to retain
• analytical difficulties --> 
• legal difficulties --> nation's constitution likely to require a hearing --> administrative or justicial proceedings
• empty formalism, intended primarily for froeign audience or may be act of expropriation of questionable internal legality --> either possibilities reduces its effectiveness

Legislation for automatic forfeiture

• 1970 UNESCO Convention 
• 1978 UNESCO INtergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation

Why do we care about the marbles?

• monmuments of human culture --> essential part of common past --> give us cultural identity
• enjoy them as art
• dramatically illustrate important fact --> all of great Western museums contain vast colletions of works from other parts of world --> if principle established that works of foreign origin must be return to sources then museums would be depleted --> symbolic of entire body of unrepatriated cultural property in World's museums and private collections

Two basic Greek arguments

• (1) Marbles were wrongly taken by Elgin and have never belonged, legally or morally, to the British
• (2) Even if Marbles became British property, they ought now to be returned to Greece

Legality of removal

• E received ambiguous firman --> exceeded powers --> actions ratified
• should be judged according to law in force at that time --> whether legal under applicable international law of time (seems to have been) --> British legally entitled to keep them
• Greece had option to bring suit in English courts based on theory that they were illegally taken --> in position to do so since 1828 --> claim is void due to passage of time
• law favours British side

Morality of removal

• other countries pursuing marbles too --> joint responsibility
• no evidence marbles would be better protected in Greece --> in fact lack of protection + dangers of war
• E removal had merit of keeping works together in way that ensured full knowledge of origins 
• Better preserved in UK
• applicable moral considerations are those of time and place
• E did both good and evil --> protected marbles but damaged Parthenon
• immorality case failed to be demonstrated

Cultural nationalism 

• marbles belong to Greece because they are Greek
• relation between cultural property and cultural definition --> full life and secure identity requires exposure to history --> artefacts are importance to cultural definition and expression, to shared identity and community
• people deprived of its artefacts is culturally impoverished
• difficulty in relating notion of cultural deprivation to physical location of Marblesnot clear that cultural value requires possession of marbles
  • GBR presents them openly as work of Greek artists
• marbles still accessible to Greeks
• Economic advantage to UK
• Political argument --> presence of marbles any other place than Greece is offence to Greeks and their nationality --> but this is a questionable value

Arguments fail -->

• founded on sentiment, not reason --> 2 edged argument equally available to GBR --> expresses values not clearly entitled to respect --> doesn't conclude that should be in Greece

Cultural internationalism

• 'cultural heritage of all mankind'
• everyone ahs an interest in the preservation and enjoyment of all cultural property, wherever it's situated, from whatever cultural or geographic source
• exception for military necessity
• marbles = cultural heritage of all mankind

3 considerations

• preservation = safer in UK
• integrity = Greece
  • but in conflict with preservation (takes precedence)
  • putting them in museum undermines integrity
• distribution = UK
  • G not culturally impoverished
  • larger distribution = accessibility

Summary

• cultural national = dubious argument
• economic nationalism = merely reargues question of legality --> UK win
• political nationalism = difficult to employ in convincingly principled way
• cultural internationalism --> values lead in different directions
  • most powerful = preservatin --> doesn't support Greek cause
  • integrity --> favour reunity with Parthenon but this is not possible without exposing them to unacceptable hazards
  • distribution/access --> no developed criteria --> doe snot appear taht present distribution argues strongly for returning Marbles to Athens

Marbles should stay where they are

The Damage is Obvious and Cannot be Exaggerated

• sculptures of Parthenon in E's time = smashed and scattered by war, invasion, religion, fire, earthquake, explosion, looting, vandalism, neglect and souvrenir hunting --> only just in tact
• when E'g agents removed them, were exactly as had been left when first put in place by original artists
• pretence that nothing much happened has continued to this day
• not actually been well cared for by British Museum
• following a modern European aesthetic which would have dismayed people of ancient Athens, it was observer who was now centre, not sacred building of goddess --> whole frieze could now be appropriated in one sweep of westernizing gaze
• E marbles cleaned before the war
• now no trace of historic partina on any of the metopes
• number of scratched surfaces

Key terms

Cultural appropriation --> adoption of an oppressed people's culture by a dominant people

Mutual exchange --> requires level playing field

Possessive individualism

Art-culture systme

Art definitions

Culture definitions

Criticism of Merryman approach

• cultural internationalism --> arises from need to protect property in war
• cultural nationalism --> people have particular interests in particular properties, regardless of their current location and ownership --> 1970 UNESCO Convention
• Merryman motivated by 'romatic byronism'
  • Eurocentric
  • applies indiscriminately to all nations with interest in preservation and repatriation of significant cultural objects
• 'source nations' who dominate amongst UNESCO 1970 --> supply far exceeds internal demand for cultural objects --> irrational to repatriate them
• universal human values embodies in such cultural objects assumed to be best recognised by those who will pay the market price --> move to locus of highest probable protection through the market, since best able to preserve
• appears more monocultural than respectful of difference --> less concerned with purported 'interests of all mankind' than with interests of maintaining Western hegemony

Moustakas -->

• argues for recognition of strict market inalienability for cultural properties integrally related to group cultural identity
• existing laws presuppose alienability of all property, inc cultural, according to market principles

Handler -->

• possessive individualism --> relationship that links individual to property as initially formulated in Locke's labour theory of value
• increasingly dominates language and logic of political claims to cultural autonomy 
• individual defined by property he possesses --> naturally seek to transform nature into forms of private property
• modernity --> extended these qualities to nation states and ethnic groups --> imagined on world stage as 'collective individual' --> increasingly imagine themselves as individuals prizing their possession of culture and history
• material objects epitomize collective identity --> being is equated with having
• culture not bounded --> continuous over time or internally homogenous --> traditions actively invented and adapted --> not an objective thing that has possessed a continuous meaning and identity over time, but the product of current needs and interpretations

Canada

• Amanda Pask --> 'at every level the claims of aboriginal peoples to cultural rights fall outside the parameters of western legal discourse. As neither state actors nor individuals, their claims can be heard neither in the international regimes governing cultural property, nor in the domest regime governing intellectual property.'
• Indian identiy defined by bureacrac committed to its disappearence --> assimilation
• aboriginal people a 'problem' whose cultural and social idosyncracies preclude smooth absorption into society
• most native people cut off from traditional land base and cultural ways of life by uprooting and resettlement programmes
• suppressed aboriginal spiritual practice as centra means to destroy social integration of native communities
• controversy over 1988 Glenbow Museum Exhibit --> treated like historical arterfacts rahter than human contempories (exhibition of artefacts) --> celebrating Indian material culture whilst actively engaging in decimating Native life (oil companies drilling activities in Alberta)

Cardinal Schubert

• exhibit 'pushed the notion that Native culture was dead, wrapped up and collected'
• need to repossess ceremonial objects an integral part of contemporary political struggle to reconstruct and redefine Native culture and identity
• commodification of Indian spirituality is understood to pose threat of cultural dissolution

Handler 

• must articulate their political claims in 'a language that power understands' --> possessive and expressive individualism of European art/culture system as its conceptual limits

1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention

• protect cultural property in war
• Feb 2014 = ratified by 126 states
• protective sign to facilitate the identification of protected cultural property during armed conflict
• first international treaty aimed at protecting cultural heritage in war --> highlighted cultural internationalism 

Contracting parties

• recognise damage and destructive to/of  cultural properties in war and increasing danger
• convinced damage to international cultural property means damage to cultural heritage of all mankind
• consider that preservation of cultural heritage = important for all peoples and should be protected
• determined to take all necessary steps to protect cultural property

Article 1 - definition of cultural property

• very wide definition --> movable or immovable property of great importance to cultural heritage of every people --> includes buildings/centers for housing such property
• inc religious, secular, archaelogical, historical, artistic, scientific collections, books etc

Article 2 - protection of cultural property --> safeguarding and respect

Article 3 - safeguarding of cultural property --> preparation in peace time for property in own state

Article 4 - respect for cultural property 

• own territory and that of other parties; don't do things that would expose it to risk of damage; no act of hostility against it; stop theft or valndalism; refrain from requisitioning movable property in other party's territory; no reprisals against cultural property 

Article 5 - occupation --> support national authorities in above if occupying territory

Article 6 - distinctive marking of cultural property --> emblem to help recognition

1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property

• impoverishment of cultural heritage of states of origin --> Convention to protect world's cultural patrimony
• war and peace
• return cultural objects illegally acquired or traded to other state party
• strengthen import/export barriers
• man states (major market nations) not keen on signing it --> very slow to do so

Considering

• interchange of cultural property as increasing knowledge of Man, enriching life of all peoples and inspiring mutual respect and appreciation among nations
• cp = basic element of civilization and national culture --> true value can be appreciated only in relation to fullest information regarding origin, history and traditional setting
• incumben that every Stae protects its cp against theft, illicit export
• cultural institutions should ensure collections built up in accordance with moral principles
• illict import, export and transfer of ownership of cp = obstacle to understanding between nations
• protection of cultural heritage can e effective only if orgnised both nationally and internationally (close cooperation)

Article 1 --> defines cultural property --> 'property which, on religious or secular grounds, is specifically designated by eac State as being of importance for archaeology, prehistory, history, literature, art or science

Article 2 --> illict import = cause of impoverishment of cultural heritage --> internation co-operation = one of most efficient means of protecting each country's cp

Article 3 --> import/export or transfer of ownershp of cp contrary to provisions = illicit

Article 4 --> cultural heritage of each State

• created by individual/collective of nation and cp of importance to State concerned created within that State
• received as gift or legally purchased with consent of competent authorities of country of origin
• both ENG and GRE fit this description in relation to Marbles --> conflict

Article 7 --> prevent museums etc from purchasing cp that has been illegally exported from country of origin

Article 11 --> export/transfer under compulsion arising from occupation of country by foreign power = illicit

1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects

• not ratified by UK
• convinced - importance of protecting cp and of cultural exchanges for promoting understanding between peoples and dissemination of culture for well-being of humanity and progress of civilisation
• deeply concerned - illicit trade and damage caused by it to cultural heritage of communities and to all peoples
• determined - contribute to fight by estabishing common, minimum legal rules for restitution and return of cp 
• affirming - adoption of provisions does not confer approval or legitimacy upon illegal transactions
• conscious - not solution in itself but initiates a process to enhance international cultural co-operation and maintain a proper role for legal trading and inter-State agreements for cultural exchanges

Chapter 1 - Scope of application and definition

Art 1 --> applies to claims of international character for (a) resitution of stolen cp; (b) illegally exported cp

Art 2 --> cp definition --> very similar to UNESCO definition

Art 4 --> possessor of stolen object required to return it entitled to payment of fair compensation provided they neither knew nor ought reasonably to have known that the object was stolen

Chapter 3 - Return of ilegally exported cultural objects

Art 5 --> (1) may request court to order return of cp illegally exported from territory of requesting State; (2) cp on permit to another state not return in accordance with terms of permit = illegally exported; (5) any requeestion for return should be brought within 3 years from time when State knew location of cp and identity of possessor and in any case within 50 years of export

Art 6 --> (1) same as art 4 but for illegally exported property; (2) only applies to cp illegally exported after it has entered into force; (3) but does not legitimaise any illegal transaction nor limit State from pursuing remedies available outside of this convention