Updated: Jul 19, 2020
The question to whom cultural property shall belong is inherently controversial. Among the key predominant issues, one must address are the different interests (legal, ethical etc.) at stake. Usually these ascribe the battle between the cultural property internationalism and nationalism. This ‘battle’ is, however indicative of the confusion present when interpreting the international laws on cultural property matters.
Defining the legal concept of cultural property
In addressing the question to whom should cultural property belong, one should first resort to the very definition that the term cultural property embraces. Of assistance here, are the various international conventions. The pioneering instrument that officially introduced the concept of cultural property is the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, which defines cultural property as all movable or immovable property of artistic, archaeological, ethnological or historical interest that are of eminence to the cultural heritage of all mankind due to their rarity. Cultural property is also defined under the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, through a list of various categories of what it considers as cultural property, leaving a discretion to each contracting state to designate the objects they consider cultural property, provided that these fall in one (or more) of the prescribed categories.
In this regard, one may make an important realisation; even though the two conventions address the same concept (focusing on different issues affecting it), they nevertheless take different approaches when it comes to its impact. The general perception is that the 1954 Convention perceives cultural property as part of the common cultural heritage of all humanity, whereas the 1970 Convention is seen as imposing national/territorial boundaries to the scope of cultural property. Academic commentary is of the opinion that these two conflicting approaches are indicative of the ongoing battle between cultural nationalism and cultural internationalism, notions that purport to answer the question as to whom cultural property shall belong.
Before diving to explore the perspectives of cultural nationalism and internationalism, it is important to note that the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (1995) defines as cultural objects all movable property in a way similar to the definition of cultural property under the 1954 Hague Convention in the sense that it does not impose national-territorial limitations. Undoubtedly, the 1995 Convention accommodates the attribution of ownership/proprietorship on cultural objects but it does not abandon the idea that cultural objects are of global significance. In the author’s view, neither of the aforementioned conventions purport that. Rather, even if it is left to the discretion of a state to determine if an element falls under the umbrella of its cultural property (per 1970 Convention) this does not mean that such property cannot have international significance. Indeed, the 1954 Convention, too, asks its contracting parties to designate what they consider to be cultural property that can be protected under the Convention. The same is true for the definition found in the 1970 Convention, the difference here is the scope of this convention as it seeks to regulate the trade of artefacts by prohibiting the illicit imports/exports of cultural property.
Cultural Nationalism and Internationalism
Prof. Merryman is the first academic who gave flesh to the conceptual conflicting notions of cultural nationalism and internationalism, the common ground of which is the protection of cultural property as a ‘non-renewable resource’. Cultural nationalism expresses the premise of the German romantic nationalism on cultural property, in that artefacts originating from a state belong within that state’s territory, because of the state’s ‘sovereign right’ of property over them. Conversely, cultural internationalism expresses that cultural property is of universal interest to all humanity; therefore its allocation should not be limited by national boundaries but rather reflect the international interest it possess.
Cultural nationalism expresses the national right to cultural heritage: that cultural property must be located within the state of origin as it forms an integral part of that state’s history, and identity. Supporters of cultural nationalism rely on the 1970 UNESCO Convention and domestic retention laws that support their thesis, that cultural property forms the core aspect of a nation’s civilisation stressing the necessity that cultural property should be located/returned to its original context or as closely to it as possible, because it is central to the interests of a state and its people. The main claims of a cultural nationalist are the preservation-safeguarding of cultural property and the integrity of cultural objects, ensuring the contextual identity of a cultural object within the environment within which has been found, as cultural objects can often wrongfully be removed and exported to another states.
A classic example of a cultural nationalist position is the claim for the return of the Parthenon Marbles from London to Greece, as the marbles are of fundamental significance to the Greeks. Prof. Merryman stresses, however, that keeping cultural property within the national boundaries of the state of origin does not always amount to protection, as if there is inadequate protection then cultural property can be at danger. Factors that fuel this premise include the situation that the illicit trade of artefacts flourishes where there are impositions of restrictions on the free circulation cultural property, which achieve the opposite of which they actually purported to avoid. The negative effect of illicit trade is a core problem to the heart of cultural property as looters tend to act carelessly and without providing sound documentation on the objects’ origin with severe impacts as in many cases doubts on the objects’ provenance and authenticity can also be fatal for the fate of the item itself as usually such objects do not possess the intellectual qualities that would have otherwise exhibited when seen/studied in their original context.
Cultural internationalism, as aforementioned, sees cultural property ‘as components of a common human culture’ irrespective of the country it originates; many academics see it as a connotation of cultural property’s true essence as independent from private law rights. The main argument of internationalists is that their thesis supports the preservation of cultural property and its integrity, due to its special importance and possible incompetence of the state claiming it to adequately preserve it. Examples of such theses are that the Egyptian museum lacks the economic capability to preserve its artefacts, or that the Parthenon Marbles are better preserved at the British Museum, because even if returned to Greece they cannot be brought back to their original context, but they will rather be placed in a museum, as the pollution in Athens has already impaired the Parthenon itself (e.g. the Caryatides were removed and housed in a museum by the Greek authorities to prevent their damage).
Another argument internationalists tend to make is that of access; e.g. the British use the proposition that the Parthenon Marbles form an integral part of the global cultural heritage, therefore, they claim that the marbles are more easily ‘accessible to all people’ in London (a top tourist destination) instead of Athens. Internationalists view that if source nations (with rich cultural property) restrict the circulation of their cultural property, that would be ‘selfish’ as the world would face a cultural deficit, because the acquisition of cultural property enriches a market state’s national patrimony and knowledge of the world. Internationalists however, are criticised that their idea of cultural property does not correspond the concept of heritage; rather that they use the cloth of cultural heritage to ‘dress’ the commodification of cultural objects, disregarding the fact that many cultural items were never meant to be circulated in the art market as they might be of religious or political significance tied with certain communities and sacred places. Some internationalists even go as far as to suggest that one state may enter the territory of another country where certain circumstances deem it necessary to protect endangered cultural property located in that country.
‘A third way of thinking’
Contemporary academic commentary, however, argues that even though the twofold way of thinking provided by Prof. Merryman, and applauded by many scholars, has been explicit within the heart of cultural property law, it has nevertheless ‘long outlived its utility’ by excluding key actors: local communities (e.g. indigenous people) from the international decision making. Communities are crucial actors because they do not see cultural property as part of a museum but rather view it as part of their lives e.g. for societal, ceremonial, religious purposes. Lixinski in this regard stresses that by excluding local communities, the international community ‘endangers’ the very efficacy of the of the ‘system created to safeguard heritage’. His proposition is that by giving access to local communities under the international legal framework a ‘pluralising access to law- and decision making’ is achieved. This means that instead of restricting the right to claim/reclaim cultural property to only states, we should encourage and include local communities to raise such claims directly-even challenge the premise that the cultural property they claim belongs to the state in which they are part of.
The idea behind this approach is the departure from the rather general and obsolete perceptions of access to cultural property of nationalism and internationalism by enabling the involvement of more stakeholders, rendering the access to international justice easier and more effective, without bureaucracies. This approach of course does not disregard the distinction between national and international perceptions to cultural property; rather it aims to facilitate an effective international regime to accommodate everyone’s interests where these are at stake. The notion of protection that the international Conventions afford on cultural property is the safeguarding of all people’s cultural heritage; that the protection of the tangible aims the protection of the intangible-intellectual feature of an artefact. Therefore, to achieve the protection of cultural property of cosmopolitan character, its intellectual element must be respected. Subsequently, where cultural objects are linked with a community that claims them, then such objects must forfeit the context of commodity in which they might have been placed, to accommodate that claim and express the very notion of cultural heritage. The involvement of local communities is really significant as it can have a profound impact when thinking about cultural heritage: if a community is deprived of its cultural property, then the negative implications of such deprivation, also, compromise the very concept of the global cultural heritage.
Where resorts to cultural heritage fail to satisfy the return/repatriation/allocation of cultural property to local groups/communities other legal mechanisms may be of aid e.g. the legal concept of property or even raise claims relying on human rights principles. Indeed, the notion of legal proprietorship of ‘property’, even though criticised for its connotation in treating such property as ordinary goods, can be of assistance to an actor aiming the repatriation of their stolen artefact, as the employment of proprietary rights can achieve the desired result, by setting aside any restrictions imposed by the laws of the country from which repatriation is sought. Indicative case supporting the concept of ownership over artefacts is the case of the Kanakaria Mosaics where the Autocephalous Church of Cyprus was able to achieve the repatriation of the looted and wrongfully removed mosaics. Under the law of the Republic of Cyprus the Church was the sole proprietor of the Mosaics, as they originally formed part of the Kanakaria Church, which per the law belongs to the Church. As far as human rights are concerned, the ECtHR has ruled in a case involving the sale of a Van Gogh’s painting (Beyeler v Italy), that the pre-emptive right of the state to restrict the circulation of the artwork within national boundaries (Italy) could not supersede the right of the owner to sell the artwork abroad.
It is apparent that to answer the question as to whom cultural property should belong is not easy. The many schools/ways of thought, each present their own fundamental reasons as to the attribution of cultural property within their sphere of thought. Undoubtedly, cultural property should be returned where acquired illicitly or where it forms part of an integral element of a state/local community and has, thus, been wrongfully removed, as not only moral but also legal principles penetrate such instances requiring restitution.
1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict
1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property
UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (1995)
Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc., 717 F. Supp.1374, 1377 n.1 (S.D. Ind. 1989)
Beyeler v Italy [GC], no. 33202/96
The Islamic Republic of Iran v Barakat Galleries  EWCA Civ 1374 (CA)
Wantuch-Thole M, 'Cultural Property in Cross Border Litigation-Turning Rights into Claims' (De Gruyter, 2015)
Vigneron S, ‘Protecting Cultural Objects: Enforcing the Illicit Export of Foreign Cultural Objects’ in Valentina Vadi Hildegard E.G.S. Schneider (Eds) ‘Art, Cultural Heritage and the Market Ethical and Legal Issues’ (Springer 2014)
Amineddoleh L, ‘The role of the Museums in the Trade of Black-Market Cultural Heritage Property’ Art Antiquity and Law  XVIII
Anglin R, 'The World Heritage List: Bridging the Cultural Property Nationalism-Internationalism Divide'  Yale Journal of Law & the Humanities Vol 20 4
Franscioni F, 'The Human Dimension of International Cultural Heritage Law: An Introduction'  EJIL Vol. 22 no 1
Prott V. L, and O'Keefe P. J, Cultural Heritage' or 'Cultural Property'?’ IJCP 307
Merryman J. H, ‘Two Ways of Thinking about Cultural Property’  A.J.I.L. 80 (4)
Merryman J. H, ‘Cultural Property Internationalism’ International Journal of Cultural Property (2005)
Lixinski L, A Third Way of Thinking about Cultural Property, 44 Brook. J. Int'l L. 563
Soirila P, ‘What’s Yours Is Mine – Indeterminacy in Cultural Property Restitution Debate’  University of Helsinki
Sosa E, Garcia R, et all, The International Obligation to protect Cultural Property  Pontificia Universdad Javeriana