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

• Author: Matthew R Hoffman
• Position: J.D. Candidate, The University of Iowa College of Law, 2010; B.S., U.S. Naval Academy, 2000.
• Pages: 01

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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 Page 668 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 Page 669 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 Property.¹³

A Cultural Nationalism

In recent years, many source countries have begun to take an aggressive approach to the protection of their cultural property by passing comprehensive patrimony laws, prohibiting private ownership, establishing restrictive export controls, and seeking the return of artifacts illegally Page 670 removed from their archeological sites or national borders.¹⁴ Two countries in particular, Egypt and China, have enacted strict domestic laws that illustrate an extreme nationalist position.¹⁵

In 2002, China issued an absolute ban on the export of artifacts produced before 1795, regardless of ownership, use, value, or cultural significance.¹⁶ The law permits temporary loans to foreign museums, but only if China's National Administration of Cultural Heritage or State Council approves the loan.¹⁷ Historically, Chinese artifacts have rarely traveled outside China.¹⁸ China is also known for its aggressive pursuit of stolen artifacts and its harsh treatment of thieves, even sentencing a security chief to death in 2004 for stealing artifacts.¹⁹

Before China's ban, Egypt implemented an even more comprehensive legal framework of cultural-patrimony laws. In 1983, Egypt vested ownership of all subsequently discovered antiquities in its national government.²⁰ The law excluded privately owned artifacts obtained before 1983, though it required all private owners to register their artifacts.²¹ The law further Page 671 banned the export of registered artifacts, thus effectively banning all exports.²²

Many archeologists support these strict measures, believing that suppressing the demand for artifacts will reduce the number of undocumented artifacts in circulation.²³ Some scholars have defined the debate in stronger terms: "Archaeologists are 'at war' with the art market because the market places the focus on the object at the expense of the full historical and cultural information the object and its original context together provide."²⁴ The Society for American Archeology's 1996 Principles of Ethics states that: "Whenever possible [archeologists] should discourage, and should themselves avoid, activities that enhance the commercial value of archaeological objects, especially objects that are not curated in public institutions, or readily available for scientific study, public interpretation, and display."²⁵ Unlike source countries, archeologists focus on data collection and artifact preservation, rather than national identity and pride. Though archeologists are not against public museums' goals of education and public access, the key concept for archeologists is context-a concept often misunderstood and underappreciated by laypersons.²⁶ An artifact in its original location, complete with original surroundings and accompanying artifacts, undisturbed by treasure hunters or laypersons, provides the best potential for data collection and interpretation.²⁷ An unprovenanced, culturally significant artifact may hold even less scientific value to an archeologist than a culturally insignificant artifact in context.²⁸Furthermore, because data collection requires access to artifacts, there is an additional aversion within the scientific community toward the free market because it promotes the movement of artifacts into inaccessible private collections and produces financial barriers to public institutions' legitimate acquisitions of artifacts. Page 672

Source countries also value context-but in a slightly different form and for different reasons. Generally, source countries argue that "cultural objects bear a special relation to a particular nation or culture" and "that the relation would be significantly impaired by removing the object from the national territory."²⁹ Removal diminishes the source country's heritage and devalues items by removing them from their context. The strength of this argument may, however, depend on the artifact. A museum display of Korean ceramics may maintain their cultural significance on display in Los Angeles,³⁰ while many Americans could imagine how the Liberty Bell's significance as a national symbol would be diminished if on permanent display outside the United States, or even outside Philadelphia.³¹

Although source countries and the scientific community base their support for cultural nationalism on the laudable goals of national identity and scientific integrity, the doctrine of cultural nationalism fails to address many of the realities source countries face, and it sometimes works counter to their goals.³² Due to the high cost, many source countries lack the resources to adequately preserve artifacts, operate museums, and police archeological sites, contributing to the loss of the very artifacts they seek to retain and preserve.³³ Source countries could instead share these costs with international museums that already possess the...