The development of international cultural law.

Author:Nafziger, James A.R.
Position:Includes remarks by Mark W. Janis - International Cultural Law: Looking Back and Looking Ahead - Proceedings of the One Hundredth Annual Meeting of the American Society of International Law: A Just World Under Law

The panel was convened at 1:00 p.m., Friday, March 31, by its chair, James Nafziger of Williamette University College of Law, who introduced the panelists: Mark Janis of the University of Connecticut School of Law; Robert Paterson of the University of British Columbia: and Alison Dundes Renteln of the University of Southern California.

THE DEVELOPMENT OF INTERNATIONAL CULTURAL LAW

Since the birth of the American Society of International Law one hundred years ago, the international community has struggled with a welter of legal issues related to culture, cultural heritage, and cultural divisions. The issues are diverse. A few recent examples include the looting of museums, libraries, and archaeological sites in Iraq; the marginalization of traditional knowledge in a global regime of intellectual property rights; the use of steroids and other performance-enhancing drugs by athletes in international competition; the Muslim headscarf question in France, Germany, and Turkey; and the rejection in much of Asia of protected status for the cultures of indigenous peoples.

Over the years, such issues have generated specific legal regimes and substantial legal commentary. Taken together, these otherwise-disparate regimes have reached a level of development that facilitates their fusion into a coherent body of international cultural law, at least as lex ferenda. The need to do so is apparent when one considers serious conflicts between different types of cultural rights and obligations. For example, the tension between provisions for protecting both cultural material and religious freedom reverberated from the Taliban's deliberate demolition of the colossal statues of Buddha in Bamayan, Afghanistan. More recently, the Grand Mufti of Egypt issued an alarming fatwa that condemned all statuary, ancient and modern.

Interestingly, the modern origins of international cultural law coincide with those of the International Law Association (ILA) and the Society in the late nineteenth century and early twentieth century, respectively. In more recent years, both organizations have contributed significantly to the development of this body of law. The Society's centennial celebration offers a special opportunity to acknowledge this history. Given the time constraints, however, our distinguished panelists can only highlight the evolving responses of the international legal system to cultural concerns before turning to a few current developments, including the elaboration of cultural rights and the work of the ILA Committee on Cultural Heritage Law.

What exactly do we mean by international cultural law? The full answer to that question is still very much a work in progress, but we can say that the term generally embraces a disparate legacy of law pertaining to family and social norms, folklore, folk art, religion, art, architecture, media, sports, recreation, music, language, literature, drama, dance, other performing arts, and significant relations among these phenomena. Another term, "cultural heritage," is normally limited to tangible or material objects and intangible ideas related to such objects in the sense of "cultural property." Cultural heritage law helps protect the physical integrity of cultural material; facilitates cooperation in its protection, transfer, and return; rectifies wrongful activity; imposes penal sanctions in response to criminal activity; and provides formal and informal mechanisms and rules for resolving related disputes.

As we all know, however, the term "culture" is notoriously ambiguous. In fact, it has been described as one of the two or three most complicated words in the English language. It has at least three different meanings: a set of desirable characteristics and goals of the civilized world; the norms and other characteristics of a particular ethnic group or society; and specific works of art, literature, music, and so on. We can speak therefore of "high culture," "a cultural experience," "low culture," "cultural life," "multiculturalism," "corporate culture," "political culture," "military culture," "culture of corruption," "cultural diversity," "culture wars," "cultural bias," "counterculture," and "drug culture." The range of meanings is mind-boggling, and the resulting confusion is rampant. For example, in reporting that London would host the 2012 Olympic Games, the Financial Times urged its readers to forget the athletes, the swimmers, the gymnasts, and turn one's thoughts to culture. The news account then trumpeted the usual plans to feature art exhibits, musical events, and poetry at the Games, without ever recognizing that sport itself is culture.

Speaking of civilization, if not its discontents, Sigmund Freud's insights concerning the meaning and significance of culture are noteworthy, especially in this 150th anniversary year of his birth. Seventy-five years ago, Albert Einstein wrote him, wondering about the prerequisites for peace and justice. In his reply, Freud emphasized the role of culture as a system of shared values to which the constituents of a particular population feel accountable. That may be the hub of an acceptable definition. Whatever one's favorite definition of "culture," the idea of shared values and related expectations about the practices of kindred persons and groups seems to be essential.

THE PAST

The historical development of international cultural law illuminates the varying circumstances in which the law has evolved and reminds us of the wisdom and aspirations of the past. For example, the pertinent law rests partly on a nongovernmental foundation of transcultural discourse and cooperation. The existence of some sort of a global civil society, with its governmental and nongovernmental networking across national boundaries, is essential to the law in action. We like to think that there is something new about this idea, that it is au courant, having...

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