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This chapter provides an historical account of the negotiations that preceded the 1983 implementation of the 1970 United Nations Educational, Scientific, and Cultural Organization (UNESCO) Convention in the United States as the Convention on Cultural Property Implementation Act (CPIA). It also shows that some art museums lined up with anthropology museums during negotiations over the CPIA—but this does nevertheless have a general relevance. In particular, the chapter describes some of the legal remedies that have been adopted for the protection of the world cultural patrimony, both at the international level and, in greater detail, with regard to the legislation of the United States. The chapter gives an overview of some aspects of current U.S. law regulating international trade in antiquities in the United States. The history of the political struggles and compromises that shaped the U.S. Cultural Property Implementation Act in its present form is recounted. Moreover, the chapter offers some suggestions for possible improvements in the Act. It appears to be that the long-term task for archaeologists must be to sensitize both citizens and politicians to the immense loss to historical patrimony that is being caused by the illicit trade in antiquities.

One particular passage of Polybius (9.10) has come to play a recurring role in contemporary legal literature and public debate on the law and practice of cultural property protection in time of war. This chapter asks whether Polybius has been appropriately cited as an early voice arguing for the protection of ‘art’ and ‘cultural property’ in time of war. More broadly, it looks at some of the similarities and divergences between analogous debates on the issues of spoliation and repatriation in antiquity and the present and, in common with other recent commentators, concludes that religion, not culture, was the dominant theme in antiquity.

This chapter consists of two parts. The first part looks at the meanings and the main implications of the concepts of “cultural property” and “cultural heritage”. It then examines the symbiosis between cultural heritage law and human rights law. The objective is to discuss the role that the human rights associated to culture (cultural rights) may have with respect to dispute prevention and dispute resolution. The second part of the chapter provides a working definition of “international dispute” and an overview of disputants, disputes, and dispute contexts. This survey aims at identifying the variety and complexity of clashes of interests and the substantive legal and political issues typically involved in the disputes arising in the cultural heritage realm.

Disputes over works of art and other cultural properties plundered during World War II are driving the elaboration of rules in national arenas and in the private sphere. This chapter examines various instances in which the general norms have been applied to specific problems. It describes these cases as subcycles of normative development. These subcycles have occurred at the level of state-to-state relations and private claims. The efforts of the heirs of plunder victims to recover cultural properties have sometimes induced governments to adjust national policies. Museums have been compelled to re-examine their collections, as well as their procedures for buying, borrowing, or accepting donated works of art. Litigation has led to changes in domestic laws on restitution of Holocaust-era assets.

This chapter explores what results when Native peoples articulate religious claims in the language of culture and cultural resources under environmental and historic preservation law. It argues that cultural resource laws have become more fruitful in two respects. First, there is more emphatic insistence on government-to-government consultation between federal agencies and tribes. Second, in 1990, National Historic Preservation Act regulations were clarified by designating “Traditional Cultural Properties” as eligible for listing on the National Register of Historic Places and in 1992, that law was amended to formally engage tribal governments in the review process. In light of these developments, protection under the categories of culture and cultural resource have proved more capacious for distinctive Native practices and beliefs about sacred lands, but it has come at the expense of the clearer edge of religious freedom protections, while still being haunted, and arguably bedraggled, by the category of religion from which these categories ostensibly have been formally disentangled.

This chapter connects the idea of pluralism in the variety of cultural expressions with the plurality of legal orders that may come into play in the enforcement of norms in the protection of cultural heritage. It shows how different legal orders (domestic and international) and different systems of norms (wartime and peacetime, public, and private) interact one with another at various levels of regulation of cultural property and in the process of enforcement. It emphasizes the importance of cultural property as an international public good, and the role that public and private actors have in contributing to the enforcement of international rules in the protection of art and heritage as a common good of humanity.

This chapter discusses the state's claim over cultural property found in the sea. It first identifies who, under international and domestic law, can legitimately claim rights with respect to cultural objects at sea. It gives special attention to sovereign and property rights of states and private persons over historic shipwrecks. It then attempts to ascertain how domestic courts have so far settled disputes affecting cultural objects at sea, in order to determine whether and to what extent these courts have enforced international provisions concerning the protection of underwater cultural heritage.

This chapter describes how three types of illegal conduct are dealt with in civil and criminal cases: the looting of cultural objects from sites in which they are buried or concealed; the theft of such objects from their owners; and the smuggling of such objects across international boundaries in violation of export laws. It discusses the extent to which domestic courts can provide protection, given the complexities of international and domestic law. It argues that civil suits for the recovery of cultural objects are playing a declining role due to the difficulties of bringing such actions. Criminal suits have been ineffective because of the insufficient effort of law enforcement due in part to a lack of resources, and in part to the relatively low priority that governments have assigned to cultural objects.

This chapter describes the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, which was drafted with this aim in mind, particularly its First Protocol, which places an obligation on States Parties not to remove cultural objects from territories occupied during wartime, and the 1999 Second Protocol, which extends this obligation to Parties engaged in civil war, and establishes that violations of the Convention are criminal offenses and provides rules for the prosecution of offenders. United Nations Educational, Scientific, and Cultural Organization (UNESCO)'s assistance to Iraq was limited by the United Nations' Sanctions Committee, which did not allow the dispatch of chemicals, photographic paper, and other supplies to enable reconstitution of the inventories. The situation in Iraq is all the more tragic in that it follows the hemorrhage of cultural materials set in motion by the armed intervention of 1991. The value of the Hague Convention over the last fifty years is evaluated.

This chapter argues that it is not property that should determine personhood or peoplehood, but the other way round. It explores how the emergence of biocultural rights asks for a fundamental rethink of property jurisprudence itself. It notes that the very notion of personhood, and hence the juridical subject in liberal democracies, is based on an assumption that a right to property is integral to what we understand as a person. The chapter seeks to answer the question regarding the moral limits of commodification. The chapter also attempts to clarify what our understanding of personhood or ‘human flourishing’ should be, to enable us to distinguish between personal property that should not be commodified and fungible property that can be.

The loss of their cultural treasures through illicit excavation, illegal export, and trafficking and the associated harm to national identity and the rights of their citizens presents a major challenge to many countries around the world. The source countries tend, on the whole, to be poorer developing States while the importing market countries are rich States such as the United States, United Kingdom, Germany, Japan, and Switzerland. This chapter first provides a critical analysis of the international cultural heritage law governing this question, in particular the 1970 UNESCO Convention on Illicit Trade in Cultural Property and the 1995 UNIDROIT Convention on the Return of Stolen and Illegally Exported Cultural Objects. Following this discussion, and as a contrast to the purely cultural heritage-based approach, it focuses on two complementary efforts to combat cultural property trafficking as an international or transnational crime: the 2000 ‘Palermo’ UN Convention Against Transnational Organized Crime and the 2017 ‘Nicosia’ Convention on Offences Relating to Cultural Property.

Nations have enacted laws to protect their cultural heritage against export. However, when objects are exported in violation of those laws, a nation faces two major legal obstacles to seeking their return. One is the proposition that the export laws of one nation will not be enforced in the courts of another. The other is that a government cannot repatriate an object without proving that it owns it in the same way as a private owner, having a right to possess and use it as he chooses. This chapter argues that both of these propositions are bad law, and that courts should disregard them.

This chapter is divided into three parts covering, respectively, conflicts in the fields of property, marital property, and successions. The part on property begins with a discussion of the distinction between immovables and movables and the dominance of the situs rule in cases involving immovables. It concludes with an extensive discussion of conflicts involving cultural property, such as stolen antiquities and artwork. The marital property part covers problems arising when spouses domiciled in a separate property state move to a community property state, or vice versa, or when they live in one state and acquire immovable property in the other state. The part on successions covers both testate and intestate succession.

Within the debate of nationalism versus internationalism, this chapter describes the development of international cultural heritage law, analyzes the notions and concepts used in this context, and highlights the existing shortcomings and loopholes in national and international legal frameworks in this field. First, the chapter explores the concept of a World Heritage Trust, and argues that the procedure used to designate World Heritage sites has become a national contest between States to obtain as many designations as possible, rather than the international and non-partisan procedure intended. Second, the chapter addresses the issue of trafficking in movable cultural heritage, by arguing that an exclusive focus on patrimony and national export laws (nationalism) is unidimensional and insufficient to protect movable cultural heritage from trafficking. In contrast, the mutual recognition of export laws through export and import regulations is a much more comprehensive and truly international approach (internationalism). In view of recent developments at the national level in Germany, as well as at EU level, the chapter demonstrates coordination between export and import regulations is necessary to protect cultural heritage against destruction and trafficking.

The conclusion summarizes the profound impact of the evolution of the concept of cultural heritage in international law on the practice of state succession. It argues that the outcome of this process has been observed within three distinctive aspects of succession of states: succession to immovable and movable state cultural property, comprising state archives of major cultural importance; state succession to international cultural heritage obligations and rights, including those arising from an internationally wrongful act against cultural heritage; and the resolution of disputes relating to state succession to state cultural property. The final conclusion also offers a set of postulates de lege ferenda in relation to best practices/standards in dealing with cultural heritage disputes in state succession.

This chapter considers claims about culture loss at hearings of the Nuclear Claims Tribunal in the Marshall Islands, including the impact of nuclear weapons testing on the people of Rongelap Atoll. The concept of cultural property is used to identify the referents of discourse about culture loss, including local knowledge, subsistence production, and connections to place. For example, the absence of breadfruit and pandanus trees on the atolls where the people from Rongelap were relocated prevented them from teaching subsequent generations how to build their distinctive sailing canoes, contributing to the decline of long-distance voyaging and the loss of knowledge about navigation by the stars and wave patterns. These discussions have been taken up by international debates about noneconomic loss and damage resulting from climate change, a matter of considerable significance for the people living in the Marshall Islands, given their double exposure to both nuclear radiation and rising sea levels.

This chapter examines neoliberal transformations in contemporary Aotearoa New Zealand as they reinvent the previous century’s touristic technologies of branding, spatial management, conduct, whiteness, and the traffic in Māori cultural property. The discussion begins with an overview of cultural policy in Aotearoa New Zealand over the last decade before shifting to The Tourism Edge, a twenty-minute promotional documentary produced by Tourism New Zealand’s Māori development team in 2005, the chapter considers the state’s efforts that promise not only to transform ethnic tourism but also to inflect all the nation’s tourism with indigenous values. It also analyzes Māori response to pressures to detach indigeneity from race and to sanitize and depoliticize ethnic life, and how the persistence of older tourism performance idioms seems to provide Māori with a space of refuge from the state’s new demands on cultural citizenship.

The book Huckleberry Finn was written to challenge dominant common places of American literary study and education. This deals with the development of the book's perspectives for an international interdisciplinary discussion concerning the relationships between “cultural property” and “national and ethnic identity.” Writing for an interdisciplinary and global audience makes the author want to be certain that we hold in common a few fundamental facts about Huckleberry Finn as a cultural object in the United States. This part also answers the question why did Huckleberry Finn become the most widely taught American book, in schools at all levels despite the fact that not all cultural authorities participate in hyper canonization or idolatry.

The UN Security Council and the UN Human Rights Council have increasingly addressed the destruction of cultural heritage in recent years, reflecting an expanded focus on cultural heritage protection across the UN system. This chapter examines the approaches of these two bodies to cultural heritage destruction and explores how their approaches have mutually reinforced each other but also reflected their different mandates: international peace and security and international human rights, respectively. This chapter starts with an analysis of some of the key Human Rights Council resolutions on the matter, as well as the work of its special procedures, in particular the Special Rapporteur in the Field of Cultural Rights. It then looks at the resolutions of the Security Council both to assess the manner in which the Security Council has introduced cultural heritage destruction to the peace and security agenda and also to identify whether the Security Council has additionally addressed such destruction as a human rights violation. The chapter concludes with discussion of whether a human rights approach to cultural heritage destruction should be adopted more widely.