DECOMMODIFYING CULTURAL HERITAGE: A LINGUISTIC UNPACKING OF "CULTURAL PROPERTY".

• Date: 01 April 2024
• Author: Creamer, Zoe

TABLE OF CONTENTS
                INTRODUCTION 1204
                I. OVERVIEW OF CULTURAL PROPERTY LEGISLATION 1207
                II. ANECDOTAL EVIDENCE OF CONFLICTING CONNOTATIONS
                OF "PROPERTY" 1212
                A. Property Law: Historic Origins 1212
                B. Legal Academic Literature 1215
                III. CORPUS LINGUISTICS RESEARCH 1216
                A. Colloquial Associations with "Property" and
                "Heritage" 1217
                B. "Property" in Early Modern English 1220
                C. "Property" and "Heritage" in the Legal Academic
                Sphere 1221
                D. "Property" in Cultural Property Case Law 1224
                IV. A LINGUISTIC SOLUTION TO A LEGAL PRESUMPTION 1226
                CONCLUSION 1229
                

INTRODUCTION

"When people see the famous portrait, they see a masterpiece by one of Austria's finest artists. But I see a picture of my aunt." (1) Esteemed actress Helen Mirren spoke these lines as Maria Altmann in Woman in Gold, the 2015 film based on a true story about Altmann's claim for a Gustav Klimt painting of her aunt, Adele Bloch-Bauer, which the Nazis looted from Altmann's family during the Second World War. (2) Austria had subsequently enacted a law rendering all Nazi ideology-motivated transactions (such as this one) void, but a different law provided that people seeking to recover artwork deemed important to the country's "cultural heritage" must petition the Austrian Federal Monument Agency. (3)

Altmann was ultimately successful in her fight for the painting, but what happens when there is no perfect storm of factors to tip the scales in favor of a claimant? (4) When a sovereign state attempts to repatriate an object, contrary to what Maria Altmann's case might suggest, the state may face various hurdles that materialized long before the object was removed from the country in the first place. (5) These hurdles are not primarily legal, but linguistic: the phrase "cultural property" has dominated the relevant body of legislation for decades, but what does it mean? (6)

The term "cultural property" may draw to mind images of statues, artifacts, and artwork that museums collect. (7) At the same time, it could refer to architecture and even fossils. (8) The legal definition of cultural property is surprisingly ambiguous. In certain pieces of legislation, it covers broad categories, while in others, cultural property is carefully described with respect to material type and year of creation. (9) Colloquially, however, "cultural property" is harder to pinpoint. Recognizing that theft and trafficking of cultural property can harm the economy and historic integrity of developing countries, the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO) adopted the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property in 1970 (the 1970 UNESCO Convention). (10)

The complex history of cultural property regulation in the United States, discussed below, suggests a lack of consensus regarding the definition of the legislation's target. However, as this Note argues, it is futile to attempt crafting a precise definition of the objects qualifying for protection under such legislation without first addressing the dueling interests inherent in the operative words. An examination of the various aims of cultural property legislation reveals two competing goals. On one side exists the desire to protect cultural heritage for the world's enrichment, and on the other is the desire to protect private ownership rights. (11) These interests are embodied in the inherent tension between, and within, the words corresponding to these respective goals--"heritage" and "property"--and their interactions with what are arguably more straightforward supporting words, such as "objects" and "antiquities." (12) This Note argues that colloquial word associations with "property" contribute to the difficulties legislators and courts face in regulating and prosecuting cultural property trafficking. Due to these connotations, the international conventions using these terms have laid an insufficient foundation for American federal legislation aiming to regulate cultural property because the use of the word "property" characterizes cultural heritage as a commodity, rather than as something of value for entire communities.

In the academic realm, some cultural property or heritage scholars support the use of the term "property," while others advocate for "heritage"; "objects" occurs in the discourse and various conventions as a compromise. (13) This Note argues that legislation should avoid using the word "property" without a qualifying antecedent. Instead, it should use the term "cultural heritage" as a modifier for further terms. In practice, this would entail more specific designations such as "cultural heritage property," "cultural heritage site," and so forth. This suggestion, which may appear inaccessible and overly technical at first blush, comes not from a detached art historical lens, however. Rather, this conclusion follows from examining the words in the context of the colloquial connotations of the word "property." This is essential, as those purchasing stolen and illicitly trafficked cultural objects--usually in good faith--are typically relatively unsophisticated individuals. (14) "Property" carries with it a long jurisprudential history anchored in the common law tradition which echoes the Latin colloquial roots of "property": "one's own." (15)

This Note proceeds in four Parts. Part I provides an overview of relevant cultural property legislation spanning from the Hague Conventions of 1899 and 1907 to the Convention on Cultural Property Implementation Act of 1983. Part II explores the impact of connotations associated with the word "property" by analyzing observable usage as it exists in academic literature and case law. To add quantitative strength to the anecdotal observations, Part III introduces a corpus linguistics study which analyzes corpora, bodies of text consisting of a large number of sources, for common words and patterns. (16) Part IV contextualizes the results of this corpus linguistics study within the relevant case law, showing how the phrase "cultural property" is unavailing in such disputes, and proposes new terminology as a solution.

I. OVERVIEW OF CULTURAL PROPERTY LEGISLATION

The term "cultural property" has enjoyed longstanding historical use--it can be traced back to the International Peace Conferences, also known as the Hague Conventions, of 1899 and 1907, which addressed protection of cultural property in times of armed conflict. (17) The resulting Hague regulations did not give an explicit definition of cultural property; however, its articles described types of property deserving protection, such as "buildings dedicated to religion, art, [or] science." (18)

Around the same time across the Atlantic, American President Theodore Roosevelt signed the American Antiquities Act of 1906. (19) Similar to the Hague regulations, this Act is devoid of any explicit mention of cultural property, instead providing authority to fine and/or imprison upon conviction those who "appropriate, excavate, injure, or destroy any historic or prehistoric ruin or monument, or any object of antiquity" on federally owned lands without "permission [from] the Secretary of the Department of the Government [which had] jurisdiction over the lands." (20)

In contrast, the 1954 Hague Convention, (21) which was the ideological successor to the earlier conferences, uses the term "cultural property" from the outset and continues on to define the term, "irrespective of origin or ownership," as

(a) movable or immovable property of great importance to the cultural
                heritage of every people, such as monuments of architecture, art or
                history, whether religious or secular; archaeological sites; groups of
                buildings which, as a whole, are of historical or artistic interest
                works of art; manuscripts, books and other objects of artistic
                historical or archaeological interest; as well as scientific
                collections and important collections of books or archives or of
                reproductions of the property defined above. (22)
                

The 1954 Hague Convention uses both "cultural heritage" and "cultural property" in its text, marking the beginning of the terminology overlap at the heart of this Note's linguistic study. (23) The Convention's language ties the terms together in a way to be echoed by future legislation: its preamble states "damage to cultural property belonging to any people... means damage to the cultural heritage of all mankind." (24)

This hint at the developing interest in human rights protection through cultural property regulation signaled by the 1954 Hague Convention's preamble did not manifest immediately; rather, ensuing agreements emphasized property over heritage concerns. The next major step occurred in 1970, when the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO) adopted the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. (25) The 1970 UNESCO Convention describes guidelines for conduct of the signatory countries regarding cultural heritage and cultural property. (26) It focuses primarily on cultural property, defined in relevant part as movable objects of significance, religious or secular, to the communities of origin. (27) It goes on to list eleven categories of cultural property, each with varying levels of specificity. (28)

The 1970 Convention arose during a time in which rampant looting of developing countries, notably many Latin American countries, presented roadblocks in terms of their economic growth and raised humanitarian concerns regarding power imbalances between states that were looted and states that purchased the objects. (29) Pioneering cultural property law scholar John Henry Merryman described countries in terms of "source nations" and "market nations," which provides a crucial theoretical framework to contextualize the 1970 UNESCO...