Monuments to the Confederacy and the Right to Destroy in Cultural-Property Law.

Author:Bissell, E. Perot, V
 
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NOTE CONTENTS INTRODUCTION 1132 I. PRESERVATION AS CULTURAL-PROPERTY LAW'S CORE VALUE 1134 A. Cultural-Heritage Law in Practice 1136 1. International Cultural-Property Law 1136 a. Treaties 1137 b. Customary International Law 1138 i. Yugoslavia 1139 ii. Bamiyan 1140 2. Domestic Cultural-Property Law 1142 a. The National Historic Preservation Act 1143 b. State Historic Preservation Law 1146 B. Cultural-Heritage Law in Theory 1147 II. CULTURAL PROPERTY AND THE VALUE OF DESTRUCTION 1149 A. The Expressive Value of Cultural-Property Destruction 1150 B. The Cathartic Value of Cultural-Property Destruction 1154 C. The Practical Value of Destruction 1156 III. A HUMAN RIGHTS-BASED APPROACH 1157 A. Cultural-Property Law as Human Rights Law 1158 B. A Human Rights-Based Approach to Cultural-Property 1161 Destruction 1. A Limited Exception to Cultural Preservation Law 1161 2. Determining a Monument's Amenability to Destruction 1164 3. Confederate Monuments and the Human Rights Approach 1167 CONCLUSION 1171 INTRODUCTION

On June 17, 2015, Dylann Roof entered the Emanuel African Methodist Episcopal Church and shot twelve black congregants, killing nine. (1) News outlets promptly uncovered photographs of Roof visiting Confederate heritage sites and waving the Confederate flag while holding a gun. The grisly massacre triggered protests and debates across the nation--with many demanding the removal of the symbols that seemed to have provided the inspiration for Roof's acts. As commentators reevaluated the meaning and appropriateness of their display in public places and at public expense, many concluded that it was time for these monuments to be taken down or destroyed.

Amidst mass protests and heated controversy, Confederate memorials began to come down. After New Orleans's city council voted to remove the city's four Confederate monuments, following a lawsuit and a heated public debate, (2) the statues were removed in the middle of the night by workers wearing flak jackets and scarves to conceal their identities for their safety. (3) In Durham, without the sanction of the county, protestors smashed a statue of a Confederate soldier that stood outside the county's courthouse. (4)

As public debate on the monuments raged on, little reference was made to the body of law governing art, architecture, and statuary in the United States. Although public monuments are protected by a web of international-, federal-, and state-level law, these laws seemed to provide little guidance for establishing the appropriateness of removing or destroying monuments.

The controversy over monuments to the Confederacy thus reveals a major lacuna in the framework of cultural-property law: the lack of a theoretical framework for dealing with the permissible destruction of cultural property. As such, a city, state, or municipality making a decision about a contested monument will find the law unhelpful.

Modern cultural-property law emerged in the wake of the destruction and looting that followed World War II. (5) Because cultural-property law's original purpose was to address the potential for wartime destruction of the world's treasures, its organizing principle is the preservation of historically or aesthetically significant heritage. As such, domestic and international cultural-property law has given little consideration to the question of whether a nation is ever justified in destroying its own cultural heritage. The logic of cultural-property law presses inexorably toward preservation.

But what cultural-property law fails to recognize is that the destruction of cultural property may promote important values. Destruction grabs headlines and inspires uniquely strong reactions. It promotes expressive values that cannot be equally realized through preservation. In the case of a victimized group, destruction of the victimizer's cultural property can realize powerful cathartic values. Alternatively, a group may wish to destroy certain objects to expressively disown the values memorialized by the works. These values are recognized in American law in varying ways under the First Amendment and under the common law of property, (6) but they collide directly with the preservationist impulse of cultural-heritage law.

In this Note, I argue that cultural-heritage law should recognize a limited right to destroy cultural property. A government should be permitted to destroy its cultural property, but only when that property was established in celebration of a violation of the customary international law of human rights. This approach recognizes the values served by destruction without casting aside the valuable protection that cultural-heritage law has afforded historically and aesthetically important art and architecture.

Part I sets out the background for this theory: historically, cultural-property law developed in response to widely deplored acts of destruction. As a result, the law orients itself around the value of preservation. However, cultural-property law has not meaningfully considered either why preservation is valuable or what deserves legal protection. It has also not considered when the destruction of cultural property might be warranted or desirable.

Part II points out the flaws of such a regime. I argue that important expressive and cathartic values can be served through the converse of cultural-property law's core value: destruction. I then examine some of the most commonly offered alternatives to destruction and conclude that a community could reasonably prefer destruction over these alternatives in some cases.

In Part III, I propose a new regime for cultural-property law that permits destruction in certain cases. Given cultural-property law's links to human rights law, nations should be permitted to destroy monuments that were established to celebrate violations of the customary international law of human rights.

  1. PRESERVATION AS CULTURAL-PROPERTY LAW'S CORE VALUE

    Consider a memorial such as the Nathan Bedford Forrest Monument, which stood in the center of Memphis until recently. Such a monument is protected by an interlocking web of domestic and international cultural-heritage legal provisions. On the international level, the 1954 Hague Convention requires states to preserve "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." (7) Domestically, the Forrest Monument was protected by the Veterans' Memorial Preservation and Recognition Act of 2003 (VMPRA), (8) which penalizes anyone who "willfully injures or destroys, or attempts to injure or destroy, any structure, plaque, statue, or other monument on public property commemorating the service of any person or persons in the armed forces of the United States." (9) Being listed on the National Register of Historic Places, (10) the Forrest Monument would have had certain additional protections. (11) And because Tennessee had passed a statute forbidding the removal of any statue from state property, (12) Memphis could not legally remove the statue under state law. (13) Memphis ultimately removed its Forrest Monument through a clever work-around, transferring the park in which it stood to a nonprofit. (14) However, litigation continues before the Tennessee Historical Commission, with the Sons of Confederate Veterans suing to restore the monuments. (15)

    The many protections accorded to the Monument raise the question of how cultural property has developed to the point where so many safeguards are afforded to Confederate memorials. Forrest's legacy is highly contested, (16) and there may be valid reasons why a city such as Memphis that owns and displays his statue on public land and at public expense might wish to remove or destroy the statue. Yet cultural-property law does not consider this possibility, instead providing only a variety of protections--protections that render the removal or destruction of such a statue difficult and probably illegal. Relatedly, cultural-property law provides protections in a value-neutral way. Once something is determined to be cultural property, the law assumes that it is worthy of protection. But as the Forrest example shows, that assumption may not be correct at all times.

    This Part provides an overview of the interlocking domestic and international safeguards that protect Confederate memorials today. It further argues that underlying all of these laws is a preservationist ethos. Because cultural-property law developed through ad hoc responses to widely deplored acts of destruction of cultural property, the laws and treaty regimes currently in place are oriented toward requiring governments to protect cultural property. This preservationist ethos pervades both the law and theory of cultural property, including its two major academic camps, cultural nationalism and cultural internationalism. Nowhere does cultural-property law consider the value of destruction, a problem that the issues surrounding Confederate memorials makes clear.

    1. Cultural-Heritage Law in Practice

      Cultural-property law has antecedents dating back at least to the Renaissance, (17) but the modern law began to emerge in the aftermath of World War II. (18) This law has developed as a series of ad hoc responses to widely deplored acts of destruction. The international treaty law governing cultural property arose as a response to the unprecedented destruction and looting of historical objects that occurred during the war. Similarly, the customary international law of cultural heritage has emerged as a response to acts of cultural destruction condemned by the international community, including, most significantly, the Taliban's 2001 bombings of the Bamiyan Buddhas and the destruction of numerous sites of religious and historical significance during the Yugoslav Wars of the 1990s.

      Domestically, cultural-property law has similar preservationist roots. The most important...

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