Globalization and national culture: recent trends toward a liberal exchange of cultural objects.

• Author: Siehr, Kurt G.

TABLE OF CONTENTS I. GOOD OLD TIMES? A. Free Trade and Exchange B. Pillage and Plundering in Times of War and Dependence C. Expropriation and Nationalization II. RESTRICTIONS AND LIBERALIZATION OF EXCHANGE A. Export of Cultural Objects 1. Export Prohibitions a. National Export Prohibitions b. International Conventions i. UNESCO Convention of 1970 ii. UNIDROIT Convention of 1995 iii. Export Restrictions in International Communities 2. Trends toward Liberalization a. Basic Rights as Barrier of Export Policy b. Liberal Practice to Grant Export Licenses c. Barriers for Return of Illegally Exported Objects B. Inalienable Cultural Objects 1. Special Status of Cultural Objects a. Archaeological Objects b. Objects in State Museums c. Objects of the National Heritage 2. Liberal Attitude with Regard to Foreign Restrictions of Trade a. No Enforcement of Foreign Trade Restrictions b. No Implementation of Conventions C. International Lending of Cultural Objects 1. Lending Restrictions a. Preservation of Cultural Objects b. Short-term Lending Only c. Danger in Foreign Countries 2. Liberalization of Lending Restrictions a. Immunity Provisions b. Long-term Loans c. Multinational Museums III. CONCLUSION I. GOOD OLD TIMES?

Almost two hundred years ago, Dr. Croke, Justice of the British Vice-Admiralty Court of Halifax, handed down the earliest reported judicial decision to treat works of art as cultural property. He reasoned: "They [the arts and sciences] are considered not as the peculium of this or of that nation, but as the property of mankind at large, and as belonging to the common interests of the whole species." (1) What did Dr. Croke mean by this statement? Did he want to praise good old times of free circulation of works of art between nations? Not at all! He was fighting against some of the bad customs of traditional warfare.

The Vice-Admiralty Court had to decide whether the Marquis de Somerueles--a U.S. merchant vessel seized by a British ship during the War of 1812 between the United States and England and brought to the seaport of Halifax--should be taken as prize or returned to the owners. (2) A suit for restitution was brought on behalf of the Academy of Arts of Philadelphia to which Mr. Joseph Allen Smith had donated twenty-one paintings and fifty-two prints bought in Italy and transported to America by the Marquis de Somerueles. (3) The lawsuit was successful. (4) Dr. Croke decided:

Heaven forbid, that such an application [for restitution of the art objects] to the generosity of Great Britain should ever be ineffectual. The same law of nations, which prescribes that all property belonging to the enemy shall be liable to confiscation, has likewise its modifications and relaxations of that rule. The arts and sciences are admitted amongst all civilized nations, as forming an exception to the severe rights of warfare, and as entitled to favour and protection. (5) Hence, Dr. Croke was confronted with some peculiarities of good-old times: the wartime limits of art trade, which survive to some extent today.

1. Free Trade and Exchange

   People have traded since ancient times. In ancient times, people traded goods that today would qualify as cultural objects but were then normal goods of daily life (e.g., pottery), of aristocratic lifestyle (e.g., jewelry, statues for gardens, villas, or patios) or of funeral traditions (e.g., urns, sarcophagi, etc.). The creators of these goods were normally unknown artisans. Even if the creators were known (for example, Phidias or Ephronios), the creators may have speculated for higher prices while never having to face the export prohibitions of their home country or city. Their business was part of general business relations among all parts of the ancient world, including Europe and the Mediterranean countries.

   Art trade as a specialized profession is a rather recent phenomenon. (6) The earliest art agents were Italians who served their northern European clients, both private and aristocratic collectors. (7) For example, Jacopo della Strada (1507-1588) bought artwork for the Fugger in Nuremberg and for the royal courts in Munich and Vienna. (8) In addition, Francesco Algarotti (1712-1764) was engaged to acquire Italian paintings for the art collection of the King August of Saxony (now part of the Dresden Gallery of Old Masters), (9) and Johann Georg von Dillis worked for the art collection of King Ludwig I of Bavaria (now part of Munich's Old Pinakothek). (10)

   Art auctions started in the eighteenth century (11) and, since that time, the art trade has been recognized as a special type of business. For instance, Joseph Allen Smith made use of art trade when he bought the paintings and prints in Italy for the Pennsylvania Academy of the Fine Arts in Philadelphia. (12) Because of this development, most major museums in America, Asia, and Europe preserve and exhibit art objects from almost every part of the world, and representative of most periods and styles throughout art history. Not all treasures of museums and private collections, however, were acquired in the open market. There were and continue to be art objects of a rather obscure provenance. (13)

2. Pillage and Plundering in Times of War and Dependence

   Prize taken in naval warfare was taken as booty in land warfare. From ancient times until the nineteenth century, it was the privilege of the victorious party to loot, capture, and sack the enemy's property. In many European museums and collections, one can still find artwork that was looted in former golden days. For example, Egyptian obelisks were transported to classical Rome as trophies of Roman expansion in the Mediterranean area, (14) and the Horses of St. Mark in Venice were taken by the Venetians when they sacked Constantinople in 1204 during the Fourth Crusade. (15) The Codex Argenteus, Wulfila's gothic Bible, and one of the treasures of the University Library of Uppsala in Sweden, is part of the booty taken when King Gustav Adolf of Sweden captured the Czech city of Prague in 1648. (16) The painting, Wedding of Cana by Paolo Veronese, was taken from Venice by Napoleon in 1797. The painting became part of the Musee Napoleon--now the Louvre--and was not returned to Venice until after Napoleon's defeat in 1814-15. (17) Finally, the Russian Museums in Moscow and St. Petersburg still exhibit German art taken as booty after the ceasefire of World War II and claimed by the Russians as "restitution in kind" and compensation for the destruction of Russian art by the German army in World War II. (18) Article 47 of the Hague Convention of 1907 with Respect to the Laws and Customs of War on Land (Hague Regulations) states that "[p]illage is formally forbidden." (19) Today, this rule is recognized as being part of customary international law, which is even binding on states that did not ratify the Hague Regulations. (20) The Hague Regulations also prohibit plundering by soldiers and require looted objects to be returned to the owners. (21) A present-day example is Iraqi art that has been recently stolen, plundered, or looted during the war in that country.

   What is to be done, however, with those cultural objects that were taken as booty, trophy, or simple antiquity in former wars, skirmishes, or times of dependence? Should the Elgin or Parthenon marbles presently housed in the Duveen Gallery of the British Museum be given back to Greece and Athens? (22) Should the Benin bronzes that were captured during the punitive expedition of 1897 be returned to Nigeria? (23) Should pre-Columbian artifacts brought to Europe centuries ago be repatriated to Ibero-American countries? (24) Does the past have any future? Without going into the details, it can be stated that the colonial and imperialistic past is barred by statutes of limitation and similar barriers, and its future is a matter of goodwill and policy. It can be added that, in the future, we do not want to "liberalize" art exchange by using force, threat, or misleading statements.

3. Expropriation and Nationalization

   Those objects that cannot be appropriated by war or exploitation of colonies can be acquired within the state by expropriation or nationalization. The most well-known events of this kind are expropriations in times of revolution and persecution. The Revolution of 1649 terminated the reign of King Charles I of England and led to the sale of his art collection. (25) The French Revolution and the accompanying secularization deprived the churches of their financial bases and caused the denaturizing of religious objects in secular museums. (26) The Russian Revolution of 1917 introduced communism and comprehensive state intervention, which left no place for private property in art objects and precious goods. Private collections--such as those of Moscow merchants Sergei Iwanovitsch Schtschukin (1854-1936) and Iwan Abramovitch Morosow (1871-1925)--were nationalized and integrated into national museums. (27) Finally, the Nazi persecution of Jews and of "degenerated" artists dispersed many private collections and devalued many public museums. (28)

   The problems caused by these events have not yet been properly settled. Under the Washington Conference Principles of December 3, 1998, on Nazi-confiscated Assets; (29) the Resolution 1205 (1999) of the Parliamentary Assembly of the Council of Europe of November 4, 1999, on Looted Jewish Cultural Property; (30) and the Vilnius Forum Declaration of October 5, 2000, (31) many museums still have to complete their provenance research on unclear or obscure acquisitions and decide what to do with formerly confiscated, privately-owned art. (32) Today, the issue of quasi-confiscating interventions by states that adhere to retentionism and prohibit the export of art of national importance remains. These limitations of art trade will be discussed below.

   2. RESTRICTIONS AND LIBERALIZATION OF EXCHANGE

1. Export of Cultural Objects

   When the European Community started as the European Economic...