Cultural Pragmatism: A New Approach to the International Movement of Antiquities

Summary

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Since World War ll, the debate between cultural internationalists and cultural nationalists has shaped international cultural-property law. Recently, some American museums, engaged in their enduring struggle to balance a mission of public education and scholarly study with the increasing risk of acquiring artifacts of disputed provenance, began to promote a middle ground of "cooperation, mutual understanding, and respect" between acquiring museums and source countries that builds upon the goals of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. This new approach, defined here as "cultural pragmatism" attempts to bridge the impasse between advocates of the two opposing doctrines that has resulted from the adversarial climate following the Second Circuit's decision in United States v. Schultz and the new power of foreign patrimony laws to reach antiquities imported into the United States. This Note analyzes the new approach and offers the classification system of the Japanese Law for the Protection of Cultural Properties as a means to its further implementation.

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Cultural Pragmatism: A New Approach to the International Movement of Antiquities

I. Introduction

Throughout history, antiquities have made their way from archeological sites and local collections to private and government collections, mainly in the western world. Many of these collections have since found their way to large, public museums, such as the J. Paul Getty Museum in Los Angeles, the Metropolitan Museum of Art in New York, and the British Museum in London. To many people, these museums represent the highest ideals of civilization, cataloging the achievements of humanity through history and educating scholars and the public by exhibiting diverse artifacts side-by-side. To others, however, these museums represent imperial conquest, unlawful acquisition, or a recognition of select world cultures by provincial Western observers.1 Recent news reports are full of demands from source countries seeking-and frequently obtaining-the return of exported artifacts. The debate between Greece and the British Museum over the Parthenon Marbles is perhaps the most well-known dispute and has continued to develop with the construction of the Acropolis Museum,2 Italy's return of a Parthenon frieze in 2007,3 and the Vatican's return of a Parthenon frieze in 2008.4 In recent years in the United States, the Getty Museum,5 the University of Virginia Art Museum,6 the Museum of Fine Arts in Boston,7 the Metropolitan Museum of Art in New York,8 the Cleveland Museum of Art,9and Yale University,10 among others, have all agreed to return artifacts to source countries.

These ongoing public controversies, along with a greater concern for the struggle of developing countries against looting and illegal trafficking, continue to lead scholars to question whether importing counties have the right to retain their collections. In many cases, newly empowered source countries have pushed back by aggressively retaining artifacts within their borders and forbidding private ownership. Their heavy-handed techniques have given commentators the justification they previously lacked to criticize the once-victimized source countries in the name of the museum community and private collectors.11 These back-and-forth arguments have increasingly polarized interested parties on both sides of the debate. Recently, however, some American museum directors have argued for a middle ground that shows greater respect for source countries' interests and increases cooperation and understanding between source countries and museums. This middle ground also encourages both a licit market for certain artifacts and an international exchange of artifacts-in both directions-between source countries and museums.

This Note explores this recent movement and its place in the ongoing debate between cultural internationalists and cultural nationalists, and further proposes that source countries adopt the Japanese government's classification system as a means to take advantage of this new movement in their dealings with the United States, and American museums in particular. Part II outlines the past debate between cultural internationalists and cultural nationalists and explores the impact these positions have had on current law. Part III discusses the United Nations Educational, Scientific, and Cultural organization Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property ("UNESCO Convention"),12 the U.S. implementation of the UNESCO Convention, and supporting U.S. case law. Part IV explores the new cultural-pragmatism movement and addresses challenges U.S. museums face when resolving conflicts under U.S. law. Part V introduces Japan's Law for the Protection of Cultural Properties. Finally, Part VI proposes a new U.S. framework that encourages source countries to incorporate elements of the Japanese export laws into their own export controls to establish a more balanced framework.

II. Two Competing Doctrines

Since the adoption of the UNESCO Convention in 1970, the cultural-property debate has divided into two factions: (1) the source-country and scholarly communities advocating a doctrine of source-country rights, or cultural nationalism, and (2) the museum and private-dealer communities advocating a free-market, international exchange of artifacts, or cultural internationalism. Each of these groups has a different underlying basis for its position. Professor John Henry Merryman famously defined these two schools of thought in his 1986 article, Two Ways of Thinking About Cultural ...

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