A Proposal for Protecting the "Cultural
Fordham International Law Journal
Copyright c 1992 by the authors. Fordham International Law Journal is produced by The
Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
A Proposal for Protecting the “Cultural” and
”Property” Aspects of Cultural Property Under
Roger W. Mastalir
The central focus of this paper is a proposal for rebalancing protection of cultural property so
as to take into account preservation of the cultural as well as property aspects of cultural property.
Part I distinguishes between cultural and property aspects of cultural property and demonstrates
how both aspects are important to an appropriate resolution of cultural property issues. Objects
of cultural property cannot be stripped of their cultural significance. They are not merely items
of property any more than children are the property of divorcing parents. Recognition of cultural
significance is an integral part of determining the best means of protecting cultural property. This
Part considers the property orientation of the generally accepted definition of cultural property. In
addition, Part I considers subsidiary issues raised by the dichotomous nature of cultural property.
Part II describes the current international legal regime for protecting cultural property and
demonstrates the failure of this regime to give adequate consideration to the cultural aspect of cultural
property. Part III identifies two schools of thought concerning cultural property. The first school
of thought, usually identified as cultural internationalism, is primarily concerned with physical
preservation of objects.2 This school articulates concerns in terms of property law principles. The
arguments of acquisitive nations, 3 museums, collectors, and archaeologists, all of whom seek to
protect their holding of or access to cultural property for aesthetic, scholarly, educative, or merely
possessory purposes, generally belong to this school of thought. The property law principles they
espouse include rights of title, possession, conquest, repose, and bona fide purchase. The second
school of thought, usually termed cultural nationalism, is primarily concerned with the cultural
significance of cultural property.4 Its arguments are often framed in terms of principles of
human rights law. The demand is for cultural dignity and cultural self-determination. Arguments
for repatriation of objects of cultural significance to source nations 6 or to peoples belong to this
school of thought. This paper asserts that the disputes between these schools of thought are really
disputes over which aspect of cultural property deserves greater legal protection. Although the
common ground between these two camps is concern for preservation of objects of cultural
significance, preservation means different things to different interests. Part IV proposes a new legal
regime founded on the common ground between these schools of thought. This Part suggests two
approaches to the problem of protection of cultural property working in tandem. The first is a
reaffirmation of the preeminence of human rights principles in resolving cultural property
questions. The second approach, from the model of environmental protection, addresses the problem
by reflecting global concern. The proposal is for a program of transfers of funding and technology
to protect the “best interests” of cultural property for the benefit of interested groups, as well as the
world community. Part V presents an assessment of the effectiveness of the proposal in protecting
both the cultural and property aspects of cultural property and the likelihood that the regime will
be acceptable to the world community.
Roger W. Mastalir*
LL.M. in International and Comparative Law (May 1992) and J.D. (August
1991) University of Iowa College of Law; M.A. (June 1986) Oxford University; B.A.
Music (December 1980) University of Nebraska-Lincoln. The author wishes to thank
the Ford Foundation for providing the financial resources that made research for this
article possible, and Professors Jonathan Carlson, Burns Weston, S. James Anaya,
and John Reitz for their comments on an earlier draft.
The protection of cultural property is developing as a
fundamental concern of international law. A growing network of
bilateral and multilateral treaties addresses the treatment of
cultural property during armed conflict, regulates its import
and export, and, most recently, governs its repatriation to
source countries and peoples. Individual nations have taken
measures to protect what they perceive to be their cultural
patrimony via state ownership laws and domestic import and
export regulations. Indigenous peoples, ethnic and religious
groups and organizations, on their own account and through
their national governments, are actively seeking repatriation of
objects of significance to their respective cultural identities.
Although these treaties, domestic laws, and efforts at
repatriation have as their goal protection of objects of cultural
significance, the legal regime these sources have produced treat such
objects primarily as property.
The central focus of this paper is a proposal for
rebalancing protection of cultural property so as to take into account
preservation of the cultural as well as property aspects of
cultural property.' Part I distinguishes between cultural and
property aspects of cultural property and demonstrates how
both aspects are important to an appropriate resolution of
cultural property issues. Objects of cultural property cannot be
stripped of their cultural significance. They are not merely
items of property any more than children are the property of
divorcing parents. Recognition of cultural significance is an
integral part of determining the best means of protecting
cultural property. This Part considers the property orientation of
the generally accepted definition of cultural property. In
addition, Part I considers subsidiary issues raised by the
dichotomous nature of cultural property. Part II describes the current
international legal regime for protecting cultural property and
demonstrates the failure of this regime to give adequate
consideration to the cultural aspect of cultural property.
Part III identifies two schools of thought concerning
cultural property. The first school of thought, usually identified
as cultural internationalism, is primarily concerned with
physical preservation of objects.2 This school articulates concerns
in terms of property law principles. The arguments of
acquisitive nations, 3 museums, collectors, and archaeologists, all of
whom seek to protect their holding of or access to cultural
property for aesthetic, scholarly, educative, or merely
possessory purposes, generally belong to this school of thought. The
property law principles they espouse include rights of title,
possession, conquest, repose, and bona fide purchase. The
1. The present paper will survey only the protection of cultural property since
2. See generally John H. Merryman, Two Ways of Thinking About CulturalProperty, 80
AM. J. INT'L L. 831 (1986) (labelling and defining these two schools of thought).
3. "Acquisitive nations" are described in other texts as "purchasing nations,"
"economically-rich nations," or "capital-rich nations."
second school of thought, usually termed cultural nationalism,
is primarily concerned with the cultural significance of cultural
property. 4 Its arguments are often framed in terms of
principles of human rights law. The demand is for cultural dignity
and cultural self-determination. Arguments for repatriation of
objects of cultural significance to source nations 6 or to peoples
belong to this school of thought. This paper asserts that the
disputes between these schools of thought are really disputes
over which aspect of cultural property deserves greater legal
protection. Although the common ground between these two
camps is concern for preservation of objects of cultural
significance, preservation means different things to different
Part IV proposes a new legal regime founded on the
common ground between these schools of thought. This Part
suggests two approaches to the problem of protection of cultural
property working in tandem. The first is a reaffirmation of the
preeminence of human rights principles in resolving cultural
property questions. The second approach, from the model of
environmental protection, addresses the problem by reflecting
global concern. The proposal is for a program of transfers of
funding and technology to protect the "best interests" of
cultural property for the benefit of interested groups, as well as
the world community. Part V presents an assessment of the
effectiveness of the proposal in protecting both the cultural
and property aspects of cultural property and the likelihood
that the regime will be acceptable to the world community.
4. See generally, Merryman, supra note 2.
5. See, e.g., Universal Declaration Of Human Rights, G.A. Res. 217A (III), U.N.
GAOR, 3d Sess., pt. 1, at 135, U.N. Doc. A/810 (1948). "Human rights" is an
umbrella term embracing all fundamental rights and freedoms. Id. Article 1 states that
"[a]ll human beings are born free and equal in dignity and rights." Id. Subsequent
articles define specific rights. Id. Among these human rights is the right of
selfdetermination, which has political, economic, social, and cultural aspects. See, e.g.,
International Covenant On Economic, Social And Cultural Rights, G.A. Res. 2200
(XXI), U.N. GAOR, 21st Sess., 1496th plen. mtg., art. 1, at 165, U.N. Doc. A/6546
(1967); International Covenant On Civil And Political Rights, G.A. Res. 2200 (XXI),
U.N. GAOR, 21st. Sess., 1496th plen. mtg., art. 1, at 169, U.N. Doc. A/6546 (1967).
6. "Source nations" are called "art-rich nations," "countries of origin," and
"artifact-rich nations" in the extensive literature on cultural property. See Hugues De
Varine, The Rape and Plunder ofCultures: An Aspect ofDeteriorationof the Terms of Cultural
Trade Between Nations, 139 MUSEUM 152 (1983) reprinted in JOHN H. MERRYMAN AND
ALBERT E. ELSEN, 1 LAw ETHICS, AND THE VISUAL ARTS 46, 49-50 (1987) [hereinafter
I. THE NATURE OF CULTURAL PROPERTY
John Henry Merryman has rightly identified tensions in
the international community between acquisitive nations and
source nations over a range of issues concerning protection
and repatriation of cultural property. 7 Tension exists
involving the dichotomous nature of cultural property. The tension
is played out in concerns over the proper definition of
"cultural property." Thus, the question regarding what cultural
property should be protected by domestic and international
efforts remains unanswered.
A. Two Aspects of CulturalProperty
An item of cultural property is an object that is of cultural
significance. It therefore has two aspects. The first aspect is
the property aspect, which derives from the fact that cultural
property consists of tangible, movable objects.8 The
implication of calling something property suggests that it can be
owned, or at least possessed and controlled.
The second as
pect is the cultural aspect, which derives from the cultural
significance of the object.9
Perhaps the most effective way to
7. See John H. Merryman, Thinking About the Elgin Marbles, 83 MICH. L. REV.
1881, 1894 (1985) (acknowledging growing international tension).
As the pressure for repatriation grows, the necessity for a framework for
discussion of cultural property questions grows with it. Although there are
significant exceptions, the topic seems to evoke a tendency to oversimplify,
to reach for the facile solution. To some, perhaps, it is not worth the effort:
cultural property does not seem important enough to call for deliberate
consideration. Sentiment may so overpower others that they become
impatient with the argument. Third World/First World politics cloud the
Id. (emphasis added).
8. See LEVA, supra note 6, at 46.
The primary phenomenon [of illicit trade in cultural property]-one that in
fact governs the others-is the emergence of the concept of cultural goods
or property. Paradoxically, it is only when goods have been divested of their
intrinsic purpose, losing their primary functional utility, that they are
termed cultural property, providing they are considered worthy to be
preserved, admired, i.e. used for another, secondary function.
Id.; see BLACK's LAw DICTIONARY 1216 (6th ed. 1990), distinguishing between
"corporeal personal property, which includes movable and tangible things, such as animals,
furniture, merchandise, etc." and "incorporeal personal property, which consists of
such rights as personal annuities, stocks, shares, patents, and copyrights." I refer to
the former definition here.
9. See, e.g., C. Franklin Sayre, Comment, CulturalPropertyLaws In India AndJapan,
33 U.C.L.A. L. REV. 851, 857, n.25 (1986).
demonstrate the two aspects of cultural property is to consider
an example of a specific item of cultural property.
The war gods of the Zuni people, a Native American tribe
of the southwestern United States, are carved wooden idols
usually two or three feet tall. These Ahayu:da
(ah-ha-YOOdah), carved by the tribe's Bear clan, appear to be simple,
rather abstract faces. The objects are rare because the clan
only carves two per year. The commercial market for these
sculptures sets their value between U.S.$5,000 and
U.S.$10,000.10 These facts demonstrate the property aspect of
cultural property. The objects, tangible and movable, are
described in terms of shape, size, rarity, and commercial value.
The property aspect may be starkly shown by the fact that
documentation dating back to the early 1800s. shows that
anthropologists, archaeologists, geologists, explorers, and other
visitors to the Zuni Pueblo near Santa Fe often took the war gods
from the Zuni's tribal shrines.'" Not everything that can be
stolen is necessarily property, but most likely these objects
were taken because they were valued as property. Thieves
foreign to the culture that produced such objects could not
understand, or at least did not respect, the cultural significance of
Considering only the property aspect of the Ahayu:da,
however, tells only part of the story. The cultural aspect of
cultural property is demonstrated in the cultural significance of
such items to the people who created them. The Ahayu:da
were placed in a shrine where their powers were invoked to
protect the tribe. Each Ahayu:da serves as guardian for the
tribe until relieved by a new one. The older ones must remain
in place, contributing their strength until they decay and
return to the earth. The war gods are meant to be exposed to
the weather so that they can do their work as religious objects.
Disintegration under the force of the elements is necessary to
their function. Although they can exist as objects, as property,
when displayed in a museum, they cannot serve their cultural
purpose.' 2 Another part of the cultural aspect of these objects
10. Rebecca Clay, Who Owns IndianArtifacts?, THE CHRISTIAN SCI. MONITOR, Aug.
28, 1990, at 12.
12. 136 CONG. REC. S 17,173-77 (Oct. 26, 1990) (statement of Sen. Domenici).
is that they 'cannot be treated as property in the usual sense
because no individual can own them.' 3 The Zuni began
retrieving the war gods from institutions and collectors in 1978.
The recent return of the carved figures has boosted tribal
morale and a sense of cultural identity.' 4 This effect on the
morale of the tribe flows from the cultural aspect of cultural
property. Cultural property is integral to the esteem that people
hold for themselves and their past.' 5 It is also integral to their
Cultural significance gives particular objects value to a
culture or to a collector. Cultural property stripped of cultural
significance would be merely property, more or less beautiful
or rare and more or less valuable on the basis of that beauty or
rarity only. Defining cultural property without reference to its
culture is not only foolish, but dishonest. It attempts to
strengthen claims of ownership while denigrating the very
thing that gives an object some of its value to the holder.
Nonetheless, recognition of the cultural aspect of cultural
property has rarely been apparent in efforts to define or
13. Clay, supra note 10. Edmund Ladd, a Zuni who is curator of ethnology for
the Museum of Indian Arts and Culture in Santa Fe, stated that, "Nobody, not even a
Zuni, not even the war priest, the rain priest, or the tribal chairman, nobody has the
right to them individually.... No one can have clear title to them. So when they're
removed from the shrine, they're without a doubt stolen objects." Id.
15. Sayre, supra note 9, at 857 n.25. "Art reflects a nation's level of self-respect
and the way in which its people view themselves and their past. The cultural heritageof
a nation, as embodied in archaeologicalartifactsand ancient treasures(sometimes referred to
as a nation's 'patrimony'), stimulates tourism, encourages scholarship, and contributes
to the intellectual life of a nation. It is in the interest of every nation to preserve its
.patrimony'...... Id. (emphasis in original).
16. GEORGES KoUMANTOS, in COUNCIL OF EUROPE, INTERNATIONAL LEGAL
PROTECTION OF CULTURAL PROPERTY: PROCEEDINGS OF THE THIRTEENTH COLLOQUY ON
EUROPEAN LAW 12 (1984) [hereinafter ILPCP]. Professor Koumantos states that
[t]he importance of cultural property for individuals, nations or the whole of
humanity does not need to be proved. It gives each person his intellectual
identity, irrespective of whether he is a creator or simply a user. Cultural
property in its entirety constitutes a huge heritage which determines our
awareness and inspires new bursts of creativity. Any reduction in this
heritage, built up over the centuries and constantly added to, means a loss. The
protection of cultural property is rightly considered to be everybody's duty.
B. The Definition of Cultural Property
Perhaps the most widely accepted definition of cultural
property is found in Article 1 of the UNESCO Convention on
the Means of Prohibiting the Illicit Import, Export and
Transfer of Ownership of Cultural Property (the "UNESCO
1970"). 17 The first notable element of this definition is that it
consists of a list of categories of property.
The most notable element of the definition of cultural
property in UNESCO 1970, however, is that it leaves to the
individual states designation of specific items from the various
categories as cultural property.' 8 The states may restrict the
17. United Nations Educational, Scientific and Cultural Organization
Convention [hereinafter UNESCO] on the Means of Prohibiting and Preventing the Illicit
Import, Export and Transfer of Ownership of Cultural Property, Nov. 4, 1970, 823
U.N.T.S. 231, reprinted in 10 I.L.M. 289 (1971) [hereinafter UNESCO 1970]; see
SHARON A. WILLIAMS, THE INTERNATIONAL AND NATIONAL PROTECTION OF MOVABLE
CULTURAL PROPERTY: A COMPARATIVE STUDY 224-29 (1978) (discussing UNESCO
1970); UNESCO, THE PROTECTION OF MOVABLE CULTURAL PROPERTY I (COLLECTION
DU PATRIMONIE CULTUREL MOBILIER): COMPENDIUM OF LEGISLATIVE TEXTS 357-64
(1984) [hereinafter COMPENDIUM] (discussing UNESCO 1970). Article I states:
For the purposes of this Convention, the term "cultural property" means
property which, on religious or secular grounds, is specifically designated by
each State as being of importance for archaeology, prehistory, history,
literature, art or science and which belongs to the following categories:
(a) Rare collections and specimens of fauna, flora, minerals and anatomy,
and objects of paleontological interest; (b) property relating to history,
including the history of science and technology and military and social
history, to the life of national leaders, thinkers, scientists and artists and to
events of national importance; (c) products of archaeological excavations
(including regular and clandestine) or of archaeological discoveries;
(d) elements of artistic or historical monuments or archaeological sites
which have been dismembered; (e) antiquities more than one hundred
years old, such as inscriptions, coins and engraved seals; (f) objects of
ethnological interest; (g) property of artistic interest, such as:
(i) pictures, paintings and drawings produced entirely by hand on any
support and in any material (excluding industrial designs and manufactured
articles decorated by hand); (ii) original works of statuary art and sculpture
in any material; (iii) original engravings, prints and lithographs;
(iv) original artistic assemblages and montages in any material; (h) rare
manuscripts and incunabula, old books, documents and publications of
special interest (historical, artistic, scientific, literary, etc.) singly or in
collections; (i) postage, revenue and similar stamps, singly or in collections;
(j) archives, including sound, photographic and cinematographic archives;
(k) articles of furniture more than one hundred years old and old musical
UNESCO 1970, art. 1, 823 U.N.T.S. at 234-36, 10 I.L.M. at 289-90.
definition. The United States, for example, has limited the
definition of protected cultural property in the 1983
Convention on Cultural Property Implementation Act ("CPIA").' 9
Under the U.S. definition, objects do not become cultural
property until they have been removed from or are threatened
with removal from their cultural context.2 °
Although UNESCO 1970 emphasizes the property aspect
of cultural property, its definition of cultural property is at
least partly in terms of cultural significance and cultural
context. Recognizing that cultural property can be defined only
partially by its age, provenance, category, or threat of pillage,
UNESCO 1970 defines cultural property as "property which,
on religious or secular grounds, is . . . of importance for
archaeology, prehistory, history, literature, art or science.'2
The introduction of cultural significance into the
definition of cultural property in UNESCO 1970 does not go far
19. 19 U.S.C. §§ 2601-2613 (1988). Under the Cultural Property
Implementation Act [hereinafter CPIA] only the import of archaeological or ethnological
materials, in danger of being lost to pillage, is prohibited if, and when, the president agrees
to restrict import of such items pursuant to a formal request by a nation shown to
vigorously protect its own items of cultural importance. Id. § 2602. Archaeological
material must be: of cultural significance; at least 250 years old; and normally
discovered as a result of scientific excavation, clandestine or accidental digging, or
exploration on land or under water. Id. § 2601. Ethnological materials must be: the
product of a tribal or nonindustrial society; at least 50 years old; and, important to the
cultural heritage of a people because of its distinctive characteristics, comparative
rarity, or its contribution to the knowledge of the origins, development, or history of
the people. Id.; see USIA, CURBING ILLICIT TRADE IN CULTURAL PROPERTY: U.S.
ASSISTANCE UNDER THE CONVENTION ON CULTURAL PROPERTY IMPLEMENTATION ACT
1, 22 (1989) [hereinafter CURBING ILLICIT TRADE].
20. See LEVA, supra note 6, at 46. Hugues De Varine recognized a similar
anomaly but on a larger scale.
The primary phenomenon [of illicit trade in cultural property]-one that in
fact governs the others-is the emergence of the concept of cultural goods
or property. Paradoxically, it is only when goods have been divested of their
intrinsic purpose, losing their primary functional utility, that they are
termed cultural property, providing they are considered worthy to be
preserved, admired, i.e. used for another, secondary function.... This concept
of cultural property is closely linked with those of 'traditional values,' the
concern for continuity, the search for 'cultural roots.' It is this very
combination that has given rise to most public and private collections, the listing
of monuments and the creation of learned historical societies. Moreover,
the very rarity of these vestiges of the past leads to their enhancement both
in intellectual terms ("what is rare is beautiful") and in economic terms
("what is rare--or scarce-is dear")."
21. See UNESCO 1970, supra note 17, art. 1, 823 U.N.T.S. at 246.
enough because of the final element of the definition of
interest here. That element is the definition's preoccupation with
the relationship of nation-states to cultural property. Not only
do states designate what items are cultural property, as noted
above, but they are the only entities competent to do so. The
definition does not contemplate the designation by indigenous
peoples of objects sacred to them as cultural property. The
state-centric element is also apparent in that the cultural
significance of objects is determined by "importance for
archaeology, prehistory, history, literature, art or science," not by
importance to the cultural identity of a people or group. The
values stated are largely external to the cultural identity of a
people or group. Is the judgment that of a living people,
defining for themselves their relationship to the world, or the
judgment of external academics applying some sort of absolute
criteria? The recognition of "religious or secular grounds"
upon which to base the importance of cultural property is
insufficient entry for the significance of objects to peoples or
groups. The Preamble suggests recognition of the importance
of cultural property to cultural identity, but even here the
nation-state is the unit of identity, not the ethnic group or
indigenous people to whom such objects may have the greatest
cultural significance. 2
C. Who Owns the Past?
Setting aside the questions of what is to be protected, and
who shall define it, concentration on the property aspect of
cultural property inevitably raises the question, "Who Owns
The Past? ' 23 If cultural property can be properly defined, who
may own it? Is "ownership" of cultural property even
possible? The problem of ownership has several facets.
A principal text on art law identifies the major problems in
protection of cultural property as (
) illicit trade and (
repatriation2. 4 Both problems involve questions regarding who
may properly own, or possess, cultural property. Trade cannot
be illicit if it does not dispossess someone of the right to licit
trade. Similarly, no one may gain return of cultural property
unless they can show "better title."
Reflecting the dichotomous nature of cultural property,
the question of ownership might be reformulated in two parts.
First, should cultural property be returned to source countries
or peoples? This is the repatriation issue. Second, who is a
legitimate claimant of and who can legitimately release cultural
property to the possession of another? This is the replevin
issue. A rough way of classifying these issues is that the first is a
human rights/self-determination issue, and the second is a
property issue. Repatriation is a moral issue concerned with
right treatment of diverse cultures and objects significant to
them. Accordingly, the focus of this moral inquiry. is on the
cultural significance, the cultural aspect of cultural property.
Replevin is a title issue, based on who has a superior right to
possess particular items of cultural property, defined by
objective criteria. Its focus is the property aspect of cultural
In addition to the possessory interests suggested by the
question of who owns the past, there are myriad interests
based on use and enjoyment. These interests may be divided
into those of the source nations and those of acquisitive
nations,.2 5 although there is some overlap between them. For
24. Compare LEVA, supra note 6, at 46 with id. at 47 (identifying critical
phenomena as 1) "the emergence of the concept of cultural property," 2) "circulation" of
cultural property, and 3) "artificial acculturation of the exotic" in the course of
colonization"). The last phenomenon is
the failure of on the part of the Europeans to understand the real values
enshrined in non-European cultures, combined with the ever-more
pronounced rejection of these same values by non-Europeans, themselves
subjected to an intensive bombardment of concepts and techniques imported in
the name of development. This has led to a sudden discovery of 'primitive
art' at the very moment when its creators are turning away from it in a
search for the symbols of so-called modem civilization. The trend to invest
cultural goods with materialistic values, which began in Europe and the
United States, is thus spreading rapidly to the rest of the world.
25. See, e.g., Paul M. Bator, An Essay On The International Trade In Art, 34 STAN. L.
source nations, the first interest is specific cultural value, or
concern over wrenching cultural property away from the
culture in which it is embedded. Second, there is an
archaeological interest in preventing destruction of the records of
civilization. A third interest is in the integrity of the work of art or
object of cultural property, which means simply that it should
not be dismembered. Fourth is an interest in physical safety of
cultural property from deterioration. A fifth interest is an
economic one, measured in terms of the price the object would
bring on an open market (intrinsic value), and the tourist
dollars generated by presence of the object in a nation (extrinsic
value). Sixth, cultural property has artistic value independent
of its cultural significance. Seventh, is the so-called
distribution interest. Cultural property may demonstrate to the world
the achievements of the culture of a nation if it is disseminated.
Eighth, there is an interest in mere retention, or "hoarding,"
as the right of source nations and peoples.26 Finally, there is
an interest in preserving the national patrimony as a matter of
pride and identity, as well as intrinsic and extrinsic economic
The interests of acquisitive nations are equally diverse.
First is again the interest in preservation, or the physical safety
of the objects above. Second, there is an interest among
colonial powers and victorious powers in times of conflict in the
humiliation of a conquered people by dispossessing them of
their cultural and artistic treasures. Third, there is the interest
of "good faith purchasers" that their ownership or possession
of objects not be unjustly disturbed, or disturbed without
compensation. 28 Fourth, acquisitive nations have an interest in
enriching their own cultural patrimony by acquisition from
external sources. Fifth, like source nations seeking appreciation of
their culture abroad, acquisitive nations have an interest in the
breakdown of parochialism in a global society. 29 Finally,
acREV. 275, 294-310 (1982) (republished as monograph by University of Chicago
Press, 1982) (examining "relevant values" in protection of cultural property); John
H. Merryman & Albert E. Elsen, Hot Art: A Reexamination Of The Illegal International
Trade In CulturalObjects, 12J. ARTS MGMT & L. 5, 8-15 (1982) (cataloguing and
analyzing interests in this way).
26. Merryman & Elsen, supra note 25, at 8-11.
27. Bator, supra note 25, at 302-06.
28. Merryman & Elsen, supra note 25, at 11-15.
29. Bator, supra note 25, at 302-10.
quisitive nations have an interest in maintaining access to
cultural property for archaeological purposes.3 °
D. The "Best Interest" of the Objects
There is a zone of strong agreement among the interests
described above. That agreement is on the fundamental
importance of preservation of cultural property. The
preservation of cultural property requires measures against the
destruction, mutilation, or division of sets and collections, 3" and
measures to prevent the deterioration as the result of neglect
or environmental damage. This area of agreement reflects the
property aspect of cultural property. Preservation is the first
principle of protection of cultural property because if cultural
property is destroyed the source nations or peoples, as well as
the world heritage at large, are divested of valuable objects.
Destruction makes any question of allocation moot.
Deterioration, vandalism, and accidental damage also diminish the
nation's and the world's cultural resources.3 2
Preservation presents another set of difficult issues.
Protection is given different meanings by different people or by
different international instruments. 33 "Protection," it has been
suggested, is sometimes used as a euphemism for nationalistic
retention of cultural property even if that leads directly to
deterioration or destruction of objects.34 "Protection" may mean
that the objects are so much a part of the cultural identity of a
people or nation that they must remain in or be returned to
that country even if the physical safety of the objects cannot be
assured. 5 This form of protection stresses the cultural aspect
of the object over its physical integrity. In a sense, it is the
culture that is being preserved at the expense of the property
by this form of protection. In the example of the Zuni war
gods,3 6 physical preservation of the objects is diametrically
opposed to their cultural. function.
The "best interest" of items of cultural property is not
easily determined. It consists of both the physical preservation
of the object and the recognition and protection of its cultural
significance. The dichotomous nature of cultural property
complicates protection of such objects. On the one hand is the
demand to treat objects as valuable property that must be
preserved from physical destruction and deterioration. On the
other hand is the argument that treats objects as culturally
significant, the cultural significance of the objects will be lessened
or destroyed, as will their culture, by separating these objects
from their cultural context. If preservation of cultural
property is fundamental, then the proposals offered to accomplish
that task must address the dichotomy as well. The following
two parts examine how the existing network of international
accords seeks to preserve cultural property and the poles of
argument within the field, including various proposals offered
to resolve the conflicts.
II. THE HISTORY OF DOMESTIC AND INTERNATIONAL
PROTECTION OF CULTURAL PROPERTY
This century has seen the development of several
overlapping efforts to protect cultural property in international and
domestic law. 7 They are protection of cultural property from
the effects of armed conflict, protection of historic monuments
for the benefit of national or world heritage, state ownership
laws, laws regulating the flow of cultural property in. and out of
states, and the current phase emphasizing repatriation of
objects of cultural significance to source nations or peoples.38
This Part surveys these efforts to protect cultural property.
A. ProtectionFrom the Rigors of War
The first effort in modem cultural property protection was
recognition of a duty to protect cultural property during
armed conflict. The Convention for the Protection of Cultural
Property in the Event of Armed Conflict of May 14, 1954
("Hague 1954") defined cultural property, 9 established the
principle of protection of cultural property during time of war
as "comprising the safeguarding of and respect for such
proptection And Reversion Of Cultural Property: Issues Of Definition And Justification, 21 INT'L
LAw. 755 (1987) (presenting discussions of earlier efforts to protect cultural property
from Middle Ages forward, including national and regional regimes); John
Moustakas, Group Rights In Cultural Property:Justifying Strict Inalienability, 74 CORNELL L. REV.
1179 (1989) (discussing concept of protection of cultural property beginning with
38. There are several useful sources surveying the development of the
international framework for protection of cultural property. See generally COMPENDIUM, Supra
note 17 (containing complete texts of several of principal documents); WILLIAMS,
supra note 17 (containing complete texts of several of principal documents); Detlev
C. Dicke, The Instruments And The Agencies Of The InternationalProtectionOf
CulturalProperty, in ILPCP, supra note 16, at 17-43 (identifying institutions and instruments for
protection of cultural property); Bator, supra note 25; P. J. O'KEEFE & LYNDEL V.
PROTr, PREPARING STUDENTS FOR PRACrICE IN INTERNATIONAL LAW (1984) (detailing
legal framework surrounding discovery, excavation, and movement of objects of
cultural significance); RIDHA FRAOUA, LE TRAFIC ILLICrrE DES BIENS CULTURELS ET LEUR
RESTITUTION (1985); AngelaJoy Davis, Beyond Repatriation: A ProposalFor the Equitable
Restitution Of Cultural Property, 33 U.C.L.A. L. REV. 642, 647-55 (1985); James A. R.
Nafziger, The New InternationalLegal Framework For The Return, Restitution Or Forfeiture
Of Cultural Property, 15 INT'L L. & POL. 789 (1983).
39. Hague 1954, supra note 33, art. 1, 249 U.N.T.S. at 240. Article 1 states that
the convention covers three classes of property, irrespective of ownership:
(a) 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; archaeological sites; groups of buildings which,
as a whole, are of historical or artistic interest; works of art; manuscripts,
books and other objects of artistic, historical or archaeological interest; as
well as scientific collections and important collections of books or archives
or of reproductions of the property defined above; .
(b) buildings whose main and effective purpose is to preserve or exhibit
the movable cultural property defined in sub-paragraph (a) such as
museums, large libraries and depositories of archives, and refuges intended to
erty, ' 40 provided for the distinctive marking of cultural
property to facilitate its recognition, 4' and defined the actions
military forces were to take to protect cultural property. 42 The
rationale of the Hague 1954 was to prevent damage to the
cultural wealth of both the world community and individual
nations.4 3 Hague 1954 has enjoyed wide, but not universal,
The United States rejected Hague 1954. The position of
the Department of State was that "the major difficulty [with
Hague 1954] is that adherence to the Convention would
seriously limit the options of the United States in the event of
nuclear war or even in some cases of conventional
bombardment."' 45 The United States government did not want to sign
41. UNESCO 1970, supra note 17, art. 6, 823 U.N.T.S. at 240.
42. Id. arts. 7-19, 823 U.N.T.S. at 240-46, 10 I.L.M. at 291-92.
43. Id. pmbl., 823 U.N.T.S. at 232-34, 10 I.L.M. at 289. The Preamble states in
Being convinced that damage to cultural property belonging to any people
whatsoever means damage to the cultural heritage of all mankind, since each
people makes its contribution to the culture of the world;
Considering that the preservation of the cultural heritage is of great
importance for all peoples of the world and that it is important that this
heritage should receive international protection.
Id. See supra note 33 (discussing cultural internationalism).
44. See COMPENDIUM, supra note 17, at 355 (listing states that have acceded to or
ratified Hague 1954).
45. Letter from Ronald J. Bettauer, Attorney, Office of the Legal Advisor Dept.
of State, to Anne Coffin Hanson, President, College Art Association of America, in 31
ARTJ. 488 (1972). The State Department position was presented by Ronald J.
Bettauer, Attorney, Office of the Legal Adviser Department of State, in response to a
letter urging U.S. ratification of the Convention by Anne Coffin Hanson, President,
College Art Association of America. Id.
on to a convention unless it could live up to its terms. 46
Nonetheless, U.S. military personnel have been continually briefed
on their responsibility to preserve and protect cultural
property since World War II.4 7 According to General Eisenhower,
in 1943, "military necessity" justifying destruction of cultural
property should be interpreted as narrowly as possible.48
In addition to treaty protection of cultural property during
times of armed conflict, international law governs the
restitution of cultural property looted from conquered countries.
Since the time of Napoleon's conquests, the restitution of
cultural property looted by victorious armies prevails as a rule of
customary international law. 49 Restitution may be the norm
for objects looted during armed conflict, but objects removed
by economic or colonial conquest are treated differently. The
products of so-called "Elginism," after the man who brought
the Parthenon Marbles to England, have often remained in the
acquisitive nation. 0
Hague 1954 balanced protection of both the "physical"
and cultural aspects of cultural property, or at least did not
significantly elevate protection of one over the other. The
physical integrity of the cultural property designated was
certainly the goal of the treaty, but the rationale for that
protection was recognition of the cultural significance of the things
protected to both a specific culture and the world community.
B. Protectionof Monuments and the World Cultural Heritage
Although this paper is primarily concerned with the
protection of movable cultural property, a brief survey of the
means of protecting non-movable cultural treasures is
appropriate to understanding the legal framework. This effort in the
protection of cultural property overlapped all of the other
dephysical preservation of cultural property, thereby protecting
its property aspect.
A. Reaffirmation of the CulturalAspect of CulturalProperty
Professor Merryman is right in asserting that a principled
basis must be found for resolution of cultural property
controversies, no less so for the cultural aspect of cultural property
than for the property aspect. Where might such principles be
First, the sources of human rights arguments concerning
cultural property must be located. These may be found in the
international human rights declarations and covenants. 48
Next, particular principles must be extracted from the debate
according to which human rights issues can be resolved. A
source of such principles is the "Heard Museum Report"' 4 9
that preceded the drafting and passage of the NAGPRA.
The so-called Heard Museum Report was the Report of
the Panel for a National Dialogue on Museum/Native
American Relations (the "Panel"). The Panel met four times during
1989 to foster dialogue aimed at formulating policy
recommendations for the protection and repatriation of Native
American cultural property held by museums and other
institutions. 50 The Panel had equal representation of Native
American people with members of the museum community
and anthropologists, and involved ex-officio participation of
members of staffs of the Senate Select Committee On Indian
Affairs and House of Representatives.'
The dialogue was hailed by participants and observers as
demonstrating a sound approach to resolving cultural
conflict,' 52 as representing a balance of conflicting interests,15 3
and as a "lesson in etiquette" in the respectful treatment of
people of diverse cultures.' 5 4 The Report is also a statement
of the human rights principles for respecting the cultural
as148. See supra note 5 (listing human rights declarations and covenants).
149. See HEARD REPORT supra note 117.
150. HEARD REPORT, supra note 117, at 4, 10.
151. HEARD REPORT, supra note 117, at 7.
152. Hearing,supra note 114, at 594 (setting forth prepared submission by Peter
H. Welsh, Chief Curator/Director of Research, The Heard Museum).
153. 136 CONG. REc. H10,985-90 (1990) (statement of Rep. Richardson).
154. Hearing,supra note 114, at 46 (statement of Sen. Conrad).
pect of cultural property. 55
The dialogue itself was premised on three principles. The
first of those principles was respect for the culture of source
nations and peoples.' 56 The second implicit principle was
apparent in the convening of the Panel itself. That principle is
one of consultation with source nations and peoples on the
treatment of remains and objects of cultural significance to
them. A third principle of cultural self-determination implicit
in the work of the Panel for a National Dialogue is one of
equality of the participants. 57
Substantive principles embodied in the report include,
first, the paramount principle of respect for the human rights
of source nations and peoples when a dispute over the
disposition of cultural property arises. When cultural affiliation to the
objects has been shown, the wishes of the source nation or
group regarding the disposition of the materials must be
followed.15 8 Another substantive principle to address the human
rights attribute of cultural property is to guarantee that the
right is real and not chimerical. Standards of treatment of
items of cultural significance should be enforceable, and
appropriate agreements given the force of law.
The practical result of these principles is that the cultural
aspect of cultural property dictates its return to source nations
or peoples whenever a claim is made by competent
representatives with cultural affiliation to the objects. "Competent
representatives" and "sufficiently close cultural affiliation" require
some further definition. Here again, the NAGPRA provides
some guidance. "Cultural affiliation" is defined in Section 1(
of the Act as the "relationship of shared group identity which
155. HEARD REPORT, supra note 117, at 11-13; see A Model For Recognition Of
The Right To Cultural Self-Determination Of Indigenous Peoples, supra note 114
(examining principles postulated by HEARD REPORT as foundation for realization of
right to cultural self-determination).
156. Hearing,supra note 114, at 43. The Chairman of the Senate Select
Committee, Senator Inouye observed that the issue of treatment of items of cultural
significance was not just one of return, but concern that "sacred objects to be treated with
157. Hearing,supra note 114, at 368. It is this principle of cultural
self-determination that the minority of the Panel felt had been violated in the recommendations
found in the Panel's report. Id. The minority view was that granting what amounted
to a veto to Native Americans simply reversed the presumption of dominance,
perpetuating the fundamental inequality of the decision-making process. Id.
158. HEARD REPORT, supra note 117, at 1.
can be reasonably traced historically or prehistorically between
a present day [indigenous peoples organization] and an
identifiable earlier group."' 5 9 A competent representative would
include the government of a source nation, as prescribed by
international law, but other representatives of source peoples
should also be accepted. For example, extrapolating from
NAGPRA's definition of "Indian tribe," a competent
indigenous peoples organization would be one recognized- by the
government of the nation in which the indigenous people
reside.' 6 ° The definition of "Native Hawaiian Organization"
offers further possible criteria. "Native Hawaiian Organization"
means "any organization which,... serves and represents the
interests of [indigenous peoples], . . . has as a primary and
stated purpose the provision of services to [indigenous
peoples], and ... has expertise in [indigenous peoples] affairs."' 16 1
Similarly, an indigenous person ("Native American" under the
Act) "means of, or relating to, a tribe, people, or culture that is
indigenous to the" source nation. 62
B. Protectingthe Property Aspect of Cultural Property
Protection of the cultural aspect of cultural property
requires primarily recognition of a new set of principles, and
perhaps of values. Cultural significance, as an integral part of
cultural property, must be properly reflected in determining the
"best interest" of objects. Protecting the property attribute
requires more pragmatic measures. How can the physical safety
and integrity of objects of cultural significance be insured?
The answer to this second prong of the cultural property
problem lies in examination of success stories of international
law developing the means of international cooperation.
Despite the differences in their views of the matter, acquisitive
nations and source nations agree on a zone of common
concern that involves the preservation of cultural property.
International protection of the global environment involved similar
recognition of a zone of common concern, and produced
treaties involving pragmatic solutions to difficult problems. The
159. NAGPRA, supra note 90, 25 U.S.C. § 3001 (1988 & Supp. III 1991).
solution required developed countries to recognize the
aspirations of lesser developed countries ("LDCs") for economic
development, and for LDCs to appreciate the threat continued
development posed to the environment. Protective measures
were beyond the means of most LDCs. One of the principal
means. of pragmatic solution to the problem of damage to the
environment involved .transfer of technology, with other
technical and financial assistance, from economically developed
countries to LDCs.
To put the argument into its simplest terms, if developed
countries wish to impose their standards of protection upon
LDCs, and those standards are beyond the means of LDCs,
then developed nations must be prepared to provide the
necessary assistance to LDCs. The reward to developed countries
in the case of the treaties for protection of the global
environment was the likelihood of a cleaner, safer environment.
Application of a similar solution in the case of cultural property,
this paper asserts, is likely to have much more certain, tangible,
and immediate benefits for acquisitive nations.
This section turns first to an examination of the problem
of and solutions for protection of the ozone layer.as a model
from environmental protection upon which to build a
successful scheme of technology transfer to protect cultural property.
Next, the extent to which an analogy between environmental
protection and protection of cultural property may be pursued
will be examined. The details of a proposal for transfer of
technology to protect cultural property will be presented in the
1. Learning From a Success Story of International Law:
Measures to Protect the Ozone Layer
The key factor in moving the world community toward a
cooperative solution to the problem of depletion of the ozone
layer was recognition of a "zone of common concern."'163
What were the ingredients to recognition of this "zone of
common concern?" They were recognition of the immediacy and
163. See, e.g., Solomon et al., On the Depletion ofAntarctic Ozone, 321 NATURE 755
(1986) (discussing extent of damage to ozone layer); John W. Kindt & Samuel P.
Menefee, The Vexing Problem Of Ozone Depletion in InternationalEnvironmentalLaw and
Policy, 24 TEX. INT'L L. J. 261 (1989) (describing efforts of international community
to achieve agreement to address ozone problem).
scope of the problem, the necessity of a global solution, and a
willingness to act in concert.
Recognition of the immediacy of the problem of ozone
depletion occurred in the mid 1980s when a hole was discovered
in the ozone layer over the Antarctic." The scope of the
problem became an issue of common concern shortly
thereafter with the publication of the likely dire effects of depletion of
the ozone layer.' 65 Because problems with the ozone layer are
far-reaching, serious, and immediate, and because no single
nation could solve the problem, a global solution was
required. 66 The will to act in concert came as a result of
164. See, e.g., Solomon et al., supra note 163, at 755 (discussing extent of damage
to the ozone layer); Kindt & Menefee, supra note 163 (describing efforts of
international community to achieve agreement to address ozone problem).
165. Michael D. Lemonick, The Heat Is On: Chemical Wastes Spewed into the Air
Threaten the Earth's Climate, TiME, Oct. 19, 1987, at 59-60.
[Ilf the ozone layer diminishes over population areas-and there is some
evidence that it has begun to do so, although nowhere as dramatically as in
the Antarctic-the consequences could be dire. Ultraviolet radiation, a form
of light invisible to the human eye, causes sunburn and skin cancer; in
addition, it has been linked to cataracts and weakening of the immune system.
Without ozone to screen out the ultraviolet, such ills will certainly increase.
The National Academy of Sciences estimates that a 1 % drop in ozone levels
could cause 10,000 more cases of skin cancer a year in the U.S. alone, a 2 %
Kindt & Menefee, supra note 163, at 265-67.
Theoretically, the complete destruction of the ozone layer would result in
the extinction of life on earth .... [A] 'decreasing' ozone layer would affect
life on earth .... A list of predictions follows including increases in cancers
and cataracts, alteration of plants and ecosystems, acid rain, degradation of
polymers used in industry, and increased 'greenhouse warming.'
The solution hit upon by the global community was to
reduce CO 2 emissions from LDCs as well as from developed
countries. To assist LDCs with attaining control of CO 2
emissions, developed countries agreed to transfers of control
technology, expertise, and funding. After the Bonn Summit in
1985, the leading developed countries stated their intention to
bring shared research and resources, and transfer of
technologies to bear upon resolution of environmental problems.'6 8
That pledge was reiterated at the Paris Summit in 1989.169
The United Nations Environment Program also recommended
transfer of technology to address problems of protection of the
global environment.170 More than recommendations for
transdevelopment banks and international or national development assistance
168. Canada-France-Federal Republic Of Germany-Italy-Japan-United
Kingdom-United States-European Community: Documents From The Bonn Summit, 24
I.L.M. 878, 881 (1985). "[R]esearch and technology in major projects should be
enhanced to make maximum use of our scientific potential. We recognize that such
projects require appropriately shared participation and responsibility as well as
adequate rules concerning access to the results achieved, the transfer of technology and
the use of technologies involved." Id.
169. Canada-European Communities-France-Federal Republic Of
Germany-Italy-Japan-United Kingdom-United States: Declaration On Human Rights and
Economic Declaration From The Paris Summit, 28 I.L.M. 1292, 1297 (1989).
38) To help developing countries deal with past damage and to
encourage them to take environmentally desirable action, economic incentives
may include the use of aid mechanisms and specific transfer of technology.
In special cases, ODA debt forgiveness and debt for nature swaps can play a
useful role in environmental protection.
We also emphasize the necessity to take into account the interests and
needs of developing countries in sustaining the growth of their economies
and the financial and technological requirements to meet environmental
39) The depletion of the stratospheric ozone layer is alarming and
calls for prompt action.
We welcome the HELSINKI conclusions related, among other issues, to
the complete abandonment of the production and consumption of
chlorofluorocarbons covered by the Montreal protocol as soon as possible and not
later than the end of the century. Specific attention must also be given to
those ozone-depleting substances not covered by the Montreal protocol.
We shall promote the development and use of suitable substitute substances
and technologies. More emphasis should be placed on projects that provide
alternatives to chloro-fluorocarbons.
fer of technology resulted from the common concern for the
global environment. Treaties have been concluded between
LDCs or organizations of developing nations and
organizations of developed nations mandating consultation on
environmental matters and transfer of technology. 17
The set of treaties, protocols, and declarations that
embodies the world community's concerted efforts to protect the
ozone layer begins with the Vienna Convention for the
Protection of the Ozone Layer, March 22, 1985 (the "Vienna Ozone
Convention"). 72 The Vienna Ozone Convention established
the foundations of a program of exchanges of technology
among nations in Article 4.17 The process of building on that
foundation began with the Protocol on Substances That
Deplete The Ozone Layer ("Montreal Protocol"), on September
16, 1987.' 71 Article 10 on technical assistance established
cooperation in implementing technical assistance and an
application process whereby LDCs could seek technical assistance. 75
1. The Parties shall, in the context of the provisions of Article 4 of the
Convention, and taking into account in particular the needs of developing
The dedication of the parties to the Vienna Ozone Convention
to transfer of technology to solve the ozone problem was
reaffirmed in the Helsinki Declaration On The Protection Of The
Ozone Layer, on May 2, 1989.176 A more direct obligation to
transfer technology and assistance is a provision of the recent
amendment to the Montreal Protocol. 177
2. Apples and Oranges? Is There a Basis for Analogy
Between the Resolution of Environmental and
Cultural Property Problems?
The hazards of ozone depletion and loss or destruction of
cultural property are clearly not of a comparable degree. The
problem of protection of cultural property may, however, be of
the same immediacy and its scope appears to have been
recognized. It is also almost certainly beyond the capability of any
one nation to solve.
Recognition of the scope and immediacy of the problem
of protection of cultural property can be seen at an
international level in the promulgation of conventions during the past
countries, co-operate in promoting technical assistance to facilitate
participation in and implementation of this Protocol.
2. Any Party or Signatory to this Protocol may submit a request to the
secretariat for technical assistance for the purpose of implementing or
participating in the Protocol.
two decades. There has been increasing accession to those
treaties, including major acquisitive nations, during recent
years.' 78 Responsibility to protect cultural property and the
cultural heritage seems to be universally acknowledged. 79
Also, the threat to cultural property is receiving increasing
attention. Public outcry in support of legislation like the
NAGPRA was stimulated by demonstrations calling attention to the
volume of Native American human remains on display in
museums or shelved and ignored in the storerooms of the
Smithsonian Institution.' 8" The deterioration of objects held in the
museums of source nations has also received media
tion. ' '
As with the problem of depletion of the ozone layer, the
problem of protection of cultural property is beyond the
competence of any one nation to resolve. 82 Too many nations and
too many interests are involved, and the flow of cultural
property is too cosmopolitan for any one nation to control the
problems. Furthermore, the problem of cultural property is
amenable to solution by means similar to those employed to
protect the ozone layer, as shall be explained below.
There is a tension between two interests in both the ozone
and cultural property problems.
With the problem of ozone
178. Bator, supra note 25, at 282-84.
179. Joseph L. Sax, HeritagePreservationAs A PublicDuty: The Abbi Grigoireand the
Origins of an Idea, 88 MIcH. L. REV. 1142 (1990). "[T]here is no deep-rooted theory
or philosophy of preservation. The idea that there is some collective obligation to
identify and protect cultural artifacts is quite modern." Id. at 1143 (citation omitted).
180. Hearing, supra note 114, at 55 (statement of Norbert Hill, Executive
Director, American Indian Science and Engineering Society, Boulder, Colo.). In the
1930s, the remains of over 800 Koniag people were excavated from a cemetery still in
use under the aegis of the Smithsonian Institution. Id. The Smithsonian Institution
still retained those remains on the eve of passage of the legislation of interest here.
Museum holdings of Native American remains and objects of cultural significance are
substantial. Id. The Field Museum of Natural History in Chicago holds
approximately 1,200 human remains of Native Americans and about 135,000 archaeological
objects from all over the United States. Id. at 45 (statement of Willard Boyd,
President of the Field Museum, Chicago, Ill.). Significant numbers of remains are housed
in other museums around the country. Id. at 49, 186 (statement of Edward Lone
Fight, on behalf of the National Congress of American Indians, Washington, D.C.;
prepared statement of Walter Echo-Hawk, Native American Rights Fund, Boulder,
181. Edward Schumacher, Peru's Antiquities Crumbling in Museums, N.Y. TIMES,
Aug. 15, 1983, at 14.
182. William D. Rogers, Book Review: The International Trade in Art by Paul M.
depletion, the tension is between the desire, sometimes stated
as a right, of LDCs to continue economic development and the
need for a safe environment championed by the developed
nations. With cultural property, the tension is between
protection of the cultural aspect of cultural property, articulated in
terms of human rights law, raised by the source nations (often
LDCs) and concern for the property aspect, articulated in
terms of property law principles, touted by the acquisitive
nations (usually highly developed economically). In each case, it
is a resource of the LDCs that is subject to exploitation and
technology from the developed nations that is necessary to
resolve the problem.
C. What to Transfer and How?
This section considers the goals and areas of emphasis of a
program of technology transfer to protect the property aspect
of cultural property. The goal is physical safety of objects.
The question of what to transfer and through what mechanism
to achieve that goal may again be answered by recourse to the
model of the ozone conventions and related declarations.
The Parties to the Montreal Protocol established the
Interim Multilateral Fund, which will operate for three years
beginning January 1, 1991, to fulfill the obligations of transfer of
technology in the Protocol. The fund will assist with financing
LDC's supply of substitutes for ozone-depleting chemicals, use
of substitutes (including plant conversions), and costs of
modification or replacement of equipment. s3
The first thing to be transferred by acquisitive nations to
source nations to assist in protecting cultural property, then, is
funding. The proposal for funding above, 184 focused on funds
to assist in prosecuting claims for repatriation of cultural
prop183. Rene Bowser, Historyofthe MontrealProtocol'sOzone Fund, 14 Int'l Envtl. Rep.
Current Rep. (BNA) 636 (Nov. 20, 1991). The Noordwijk Declaration calls for
funding of technology transfer to combat ozone depletion aim primarily at operating
expenses. See The Noordwijk Declaration Of November 7, 1989, On Atmospheric
Pollution And Climatic Change, 12 Int'l Envtl. Rep. Current Rep. (BNA) 624 (Dec. 13,
184. See supra note 139 and accompanying text (discussing World Culture
erty. The present proposal is for funding to protect the
physical safety of cultural property as well. The ozone fund is
designed to cover on-site costs of improving protective
conditions. Similarly, the funding for cultural property protection
would be available for (
) improvement of storage,
examination, educational, and display facilities, and (
needs, both for education of staff and for hiring. The funds
required for these purposes are likely to be smaller than the
funds necessary for acquisition of objects as part of a program
of repatriation by purchase or for expenses of pursuing legal
claims for repatriation. 18 5
In addition to transferring funds, protecting cultural
property calls for transfer of expertise. This should involve direct
exchange of museum personnel, archaeologists,
anthropologists, preservation specialists, or museum environment
specialists. These visiting experts would assist source nations with
planning or pursuing programs of cultural property
protection. Such protection would involve development of museum
facilities, educational programs, preservation programs,
cataloguing of objects, or competent discovery, investigation, and
removal of cultural property from historic sites.'i 6
The flow of expertise should not be one way. Experts in
source nations might well be able to provide insights in the
tasks of identifying and explaining the cultural significance of
objects in the collections of museums in acquisitive nations.
Educational facilities of museums and academic institutions in
the acquisitive nations should also be at the disposal of experts
visiting from source countries so that the institution as well as
the visitor may be enriched.
185. LEVA, supra note 6, at 60-62. The purchase prices of antiquities are out of
reach of many LDCs, as is the cost of renovating facilities. Id. Relatively small
amounts of money would go a long way toward renovation of facilities to prevent
deterioration of cultural property in storage or on display, train staff, or fund staff
positions at a source nation's or peoples' museum when the entire budget for Peru's
national museum was only U.S. $200,000 in 1983. Id. That budget paid the salary of
the museum's 89 staff members, including guards and secretaries. At that time, the
museum had only one climate-controlled room, but was seeking U.S. $40 million to
build a new facility. Id.
186. Id. Peru was unable to keep up with the cataloguing and examination of
antiquities already in storage at the national museum. Id.
The heart of a program of cooperative protection of
cultural property, however, would be the transfer of preservative
technology. Transfer of technology has had a successful but
controversial history in addressing the ozone problem. The
necessity of transferring technology to protect the ozone layer,
and the will to do so, were recognized in the Helsinki
Declaration and other statements of developed countries. The
technology that must be transferred to protect cultural property is
primarily relatively low-technology, climate-control equipment
to protect objects in storage or on display. 8 7 Even in the case
of protection of the Parthenon from environmental damage,
the technology required was not sophisticated. 8 " If such basic
preservative technology and adequate funding for staff and
facilities were provided, the whole argument that source nations
were inappropriate custodians of their own cultural property
4. The Quid Pro Quo
What is to motivate acquisitive nations to become involved
in transfer of resources, expertise, and technology to assist
source nations in becoming better custodians of their own
cultural property? Quite simply, it is the opportunity to retain
access to and distribution of cultural property for the world
community. Access and distribution are key principles of
"cultural internationalism."' 8 9 By providing needed assistance to
source nations, acquisitive nations would be in a position to
negotiate access to and distribution of cultural property in the
form of exchanges, long-term loans, cooperative exhibitions,
and cooperative scholarship.
The other principles of "cultural internationalism" would
also be served. The goal of the program of transferring funds,
expertise, and technology, of course, is preservation. Integrity
of the cultural property would also be achieved with such a
program as collections of items of cultural property could be
maintained instead of being broken up either by deterioration,
187. Id. at 61.
189. See supra, notes 97-107 and accompanying text (discussing "cultural
forced or covert sale of items, or the necessity of choosing
which among many related objects can be saved.
5. The Mechanism of Transfer
Again, as was demonstrated by the ozone problem, the
mechanism of transfer must be acceptable to donors and
recipients. 190 There are several competent international agencies
available to handle transfer of funds and technology for the
protection of cultural property. They include the International
Monetary Fund (the "IMF"), UNESCO, the Agency for
Cultural and Technical Co-operation (the "ACCT"), and the
International Center for the Study of the Preservation and the
Restoration of Cultural Property (ICCROM). 19' Also in place
are the fund and administrative organs of the "World Heritage
Fund" and the fund established under UNESCO 1970.
Reorientation or establishment of departments charged
with facilitating exchange agreements within one of these
competent organizations would be a relatively simple matter. The
use of the international preservation funds named above is
probably preferable as they are already identified with cultural
The next question considers who is to be the source of
funds, expertise, and technology? There is a willingness on
the part of governments to become involved in such a
program, as can be seen by the increasing acceptance of the
cultural property treaties. However, much of the cultural
property that source nations would wish to repatriate is held in
collections and museums not directly controlled by the
government of acquisitive nations. A program of bilateral
exchanges between individual institutions might prove
productive, for example the "joint custody" of murals from
Teotihuacin by the de Young Museum in San Francisco with the
government of Mexico.' 92 Current holders and claimants of
cultural property could be brought together under the aegis of
190. See Bowser, supra note 183, at 636-40. "The largest and most powerful
developing countries made clear that they would not sign the agreement until an
adequate financial mechanism was established to pay for the added cost of substitutes
for ozone-depleting substances." Id.
191. Id.; see also Dicke, in ILPCP, supra note 16, at 29 (listing agencies concerned
with cultural property).
192. LEVA, supra note 6, at 131-32.
an administering agency to negotiate cooperative
arrangements involving repatriation of lost objects, loans and
exchanges of items of mutual interest, and transfer of expertise
and preservative technology. In this way, a dialogue could be
opened between the polar positions that would ultimately lead
to resolution of the disputes in the protection of cultural
property. Increased respect for the cultural aspect of cultural
property forwarded by source nations and peoples would be
achieved by cooperation in repatriation and preservation. The
goal of preservation based on the property aspect of cultural
property would also be achieved.
V. AN ASSESSMENT OF THE PROPOSAL: CAN IT WORK?
The assessment of any proposal to resolve disputes over
the protection of cultural property must be based on three
criteria. The first criterion is whether or not the proposed
solution is practicable. The second is whether or not the proposed
solution does what it sets out to do. The final criterion is
whether or not the proposed solution will be acceptable to the
parties involved. The present proposal passes all three of
A. Assessment of the Proposalfor Protectingthe CulturalAspect of
The proposal for protecting the cultural aspect of cultural
property was to reaffirm the human rights aspect of the
problem. The practical result of this reaffirmation is return of
cultural property to source nations or peoples whenever a claim is
made by competent representatives with cultural affiliation to
the objects in question.
Is it workable or acceptable to mandate repatriation of
cultural property as a guiding principle? There is a ready
example to demonstrate that the answer to this question is yes. The
United States NAGPRA 9 3 is that example. NAGPRA
mandated the repatriation of a broad category of cultural property,
human remains and objects of cultural significance, to source
peoples. The repatriation was to be undertaken by all
museums receiving federal funds, following an inventory of such
193. See supra, notes 90-93, 159-62 (discussing provisions of NAGPRA).
cultural property, and assessment of the cultural affiliation of
each object. Both the inventory, and the assessment of
cultural affiliation to determine the proper recipient of
repatriation were to be carried out in cooperation with the source
peoples. Funds were to be made available to assist both source
peoples in pursuing claims, and to museums to conduct the
inventories, and a dispute resolution panel was established.
The Act was passed by a substantial majority of both
houses of the U.S. Congress. Its promulgation followed
extensive consultation between the interested parties. These facts
suggest that repatriation of cultural property to source peoples
is acceptable to a wide spectrum of interests in the largest
acquisitive market in the world. Furthermore, the process of
consultation addressed the interests of both source and
acquisitive parties to ensure that the final provisions of the act were
workable, and that they achieved the goals of protection and
repatriation of cultural property. I would suggest that if there
is the willingness to pursue such a program in the United
States, and it has had results satisfying to both source peoples
and current holders of cultural property, then acceptance of
the same principles on a global scale should meet with similar
B. Assessment of the Proposalto Protect the PropertyAspect of
In assessing the proposal to protect the property aspect of
cultural property in addition to the criteria of assessment
applied above there is an additional question to be asked. That
question, discussed last in this section, is whether or not the
proposals for transfer of funds, expertise, and technology to
protect cultural property can avoid some of the pitfalls
encountered in transfer programs to protect the environment.
1. Can It Work?
The short answer to this question is that transfers of
funding, expertise, and technology have already happened.
Furthermore, these transfers have had a beneficial impact on the
problem they were designed to address. It was provisions for
such transfers that had a substantial influence on the
participation of LDCs in programs for protection of the global
environment. The global will to solve the problem was the impetus
behind acceptance of such provisions by developed countries.
The need for measures to protect the global environment
and the need to assist LDCs to that end were recognized by
developed countries. 94 Initially, the U.S. government feared
the establishment of a precedent of transfer of funds and
technology to address global problems. However, the public
support for such measures led to a turn-around in U.S. policy.' 95
The United States has now become one of the principal
proponents of technology transfer to protect the environment.' 9 6
Other industrialized countries, such as Japan, have also
accepted transfer of technology and funding as appropriate
means of addressing problems of global concern. 97
Transfer of technology has been a valuable incentive to
obtain the involvement of LDCs in protection programs of
global concern. The Montreal Protocol assured LDCs that
developed countries would provide transfer of technologies and
technical assistance to assist them in controlling the ozone
problem.' 8 The lack of clear provisions for transfer of
tech194. Bowser, supra note 183, at 636-40.
195. Id.; see also U.S. to FinanceResearch on Global Warming, UPI, Feb. 27, 1992
available in LEXIS, Nexis Library, UPI File. "Stung by criticism of its opposition to
limiting carbon dioxide emissions, the United States offered Thursday to pay for
environmental research studies in the developing countries and give them the
technology to combat global warming." Id.
196. Soviet Environmental Officials Advise Complete ChlorofluorocarbonPhase-Out, 13
Chem. Reg. Rep. (BNA) 592 (July 28, 1989):
The United States also considers transfer ofCFC substitute technology
a key part of addressing the ozone depletion problem, according to Eileen
Claussen, director of the U.S. Environmental Protection Agency Office of
Atmospheric and Indoor Air Programs. Claussen said it will be difficult to
overcome the objections developing countries have to being told they
cannot use CFCs.
Industrialized nations need to determine how to fill the CFC needs of
developing countries, she said. She added, however, that first it has to be
determined exactly how much and what kinds of technology they need, as
well as how much funding they must have to begin using the technology.
197. Highlights, 14 Int'l Envtl. Rep. Current Rep. (BNA) 433 (Aug. 14, 1991).
"POLLUTION CONTROL TECHNOLOGY will be transferred by Japan to other
Asian countries, the Environment Agency announces. As a first step, the agency will
examine the technology needs of China, Thailand, and Indonesia, and then transfer
relevant Japanese technologies to those countries for as long as 20 years." Id.
198. Montreal Protocol, supra note 174, art. 10, 26 I.L.M. at 1557.
nology and funding made LDCs slow to accede to the
Protocol. Without such assistance, LDCs could do little to address
the ozone problem. 199 When the United States reversed its
position on technology transfer, issuing a statement
supporting the creation of a CFC fund, operated and administered by
the World Bank, the announcement undoubtedly spurred the
unanimous decision of the parties to the Montreal Protocol, on
June 29, 1990, to establish the Interim Multilateral Fund to
finance technology transfer to developing nations. The
establishment of a fund for technology transfer also was an
incentive to the Indian and Chinese environment ministers to
recommend ratification to their respective governments. 0° Such
"selected incentives" are important to obtain the participation
of the least enthusiastic relevant parties. The selective
incentives commonly used are access to funding, access to
resources, access to markets, and access to technology. 20 '
There is a direct precedent for transfer of funds,
expertise, and technology in the protection of cultural property.
UNESCO 1972 provides, in Articles 13 and 19, for financial
assistance from the "World Heritage Fund" to support
conservation measures for national sites included in a "world
heritage list" if states maintain these sites at agreed-upon
standards of protection. 0 2 The fund is administered by the United
Nations Educational, Scientific and Cultural Organization
(UNESCO), and now has an annual budget of $2.2 million
financed by both mandatory and voluntary contributions and
split nearly evenly between projects for cultural and natural
heritage sites. 20 3 With 111 member states, UNESCO 1972 is
the most widely accepted "environmental treaty" and cultural
property treaty today.20 4
The incentive that is provided to developed nations to
provide technology, funds, and other assistance to LDCs in the
environmental area is usually access to natural resources.20 5
199. Bowser, supra note 183, at 636-40.
201. Peter H. Sand, Lessons Learned in Global Environmental Governance, 18 B.C.
ENVrL. AFF. L. REV. 213, 221 (1991).
202. UNESCO 1972, supra note 51, art. 13, 1927 U.S.T. at 44, 1037 U.N.T.S. at
203. Sand, supra note 201, at 221-22.
205. Id. at 222.
As mentioned above, the incentive for acquisitive nations to
transfer to source nations technology and funds to protect
cultural property is also access to the resources of the source
nation, in this case cultural property, archaeological sites and
Will transfer of funds, technology, and expertise to source
nations result in the physical protection of cultural property?
It is difficult to see why improving the facilities to preserve and
study cultural property in the source nations should not result
in as high a degree of preservation as could be achieved in
museums and collections in acquisitive nations. The only
significant difference between the two places is the ayailability of
resources to address the problem. If the resources are made
available to source nations, then the goal of preservation
should be met. Indeed, because cultural property is still
concentrated in source nations, on-site preservation should result
in broader protection of cultural property rather than
protection of a few selected pieces that have been exported.
2. Avoiding the Pitfalls of Transfer of Technology in
Transfer of technology and funds to protect the
environment has remained a contentious issue. 2°6 The central
problem is the concern of developed countries that they will simply
be "giving away" their technological achievements2. 0 7 Similar
206. See, e.g., No Timetable Set ForC0 2 Reductions, 'PrecautionaryPrinciple' Upheld, 21
Env't Rep. 267 (BNA) (May 25, 1990) (noting U.S.'s continued objection to transfer
of technology and funds to control CFCs as dangerous precedent for expectations
that developed countries will continue to pay).
207. J. T. Nguyen, UN-Environment, UPI, Mar. 2, 1992, availablein LEXIS, Nexis
Library, UPI File.
The issue of development and environment has transformed the
relationship between the Northern and Southern hemispheres into a battleground
between rich and poor, each blaming the other for the deteriorating
In advance of the Rio dejaneiro summit, business communities,
particularly those in the United States, have been up in arms against an onslaught
of Third World demands on sharing high-technology equipment if the
meetings bring about strict rules against greenhouse gas emissions.
Industrializedcountrieswant the United Nations to protect patents on use of their
technology, particularlyin industrialdevelopment.
Id. (emphasis added).
concerns should not waylay efforts to transfer technology and
funds to source nations to protect cultural property.
The first reason that the opposition to transfer of
technology to protect cultural property should not arise is the
difference between the technology sought by source nations and
that sought by LDCs to address environmental problems. The
technology necessary to protect cultural property is largely
climate-control devices in common usage in the museums, and
even office buildings, of developed countries. There is little
unique technology involved, and consequently little prospect
of loss of significant royalties from new "high-tech"
developments, as is the case with environmental protection
When the concern is over transfer of expertise, there are
no significant "trade secrets" to be lost in the protection of
cultural property. Most of the expertise required can be
gained by training at museums and universities in developed
countries. These facilities already exist. What is required is
funding to bring people from source nations into these
institutions for training, or to provide for exchanges of experts
between source and acquisitive nations. This should be part of
the enrichment of the academic world that is the goal of
university programs of cultural diversity.
Finally, while the results of cooperation to protect the
environment are often a speculative improvement in
environmental conditions, the results of transfers of funds and
technology to protect cultural property are immediate and obvious.
The impact of ozone depletion lies years ahead, and so too
does the impact of efforts to control the problem. The
improvement in preservative conditions that could be wrought by
providing a Peruvian museum with adequate climate control
devices and assistance with funding and training of adequate
staff would be immediate. So too, the benefits of cooperation
in exchange of cultural property would be immediate. Instead
of retaining access to those pieces of cultural property in its
current collection, a museum in an acquisitive nation that
negotiates an exchange program with a museum in a source
nation as part of a repatriation agreement would gain access to a
much wider range of the wealth of cultural property in the
C. Avoiding the Worst Controversiesin Protection of
Perhaps the greatest benefit to be gained by adoption of
the proposals in this paper is the avoidance of the worst
controversies in protection of cultural property. If the principle of
repatriation is established on human rights grounds, then not
only will the cultural aspect of cultural property be vindicated,
but a new spirit of cooperation and respect between source
and acquisitive nations could be achieved. That certainly has
been the result of the Heard Dialogue and the NAGPRA.
Former holders of cultural property are able to draw upon the
resources of Native Americans in identifying the cultural
affiliation of objects and gaining access to objects of continuing
interest to both communities. Once the fear of dispossession has
been removed, the interest in cultural understanding and
respect stated by both source and acquisitive communities can be
The assertion of the preeminence of the property aspect
over the cultural aspect, the claim of "cultural
internationalism" over "cultural nationalism," has been a divisive element
blocking the common goal of preservation of cultural
property. It is time to end the division and take steps toward the
This paper has distinguished between the cultural and
property aspects of cultural property, and identified each as an
essential element in the nature of cultural property. The
dichotomous nature of cultural property has not been
adequately reflected in either the definition of cultural property or
efforts to protect it. Instead, the international legal regime has
focused on the property aspect of cultural property by asking
the question, who owns cultural property? The principal
dispute in resolving cultural property issues has been how best to
preserve cultural property to protect the "best interest" of
cultural property. Two schools of thought have arisen, each
elevating one aspect of cultural property over the other. One
school of thought, preferring the property aspect, attempts to
resolve conflicts on the basis of property law principles. It is
primarily concerned with physical safety of objects. The other
school of thought, preferring the cultural aspect, attempts to
resolve conflicts on the basis of human rights principles. It is
primarily concerned with preserving the cultural significance
and affinity of objects to specific peoples. Preservation lies
within the zone of agreement between the two schools of
thought on protection of cultural property, but it means
different things to the two schools.
An appropriate resolution of disputes over preservation
must take into account both the cultural and property aspects
of cultural property. Objects should not be consigned to
deterioration out of neglect or lack of resources unless that
deterioration is a part of the cultural function of the objects, as it is
with the Zuni war gods. Objects of cultural significance must
be treated with respect for that cultural significance. A holder
who rejects as sentimental the role an object plays in the
cultural identity of a group is not a fit custodian for that object.
. The best resolution of the controversies over protection of
cultural property is in two parts. First, the cultural aspect of
the objects must be affirmed. In theoretical terms, affirmation
of the cultural aspect means recognizing human rights
principles for disposition of cultural property. In practical terms, the
cultural aspect of cultural property can best be preserved by
repatriating it to source nations and peoples. Holders of
cultural property outside of the source nation or peoples should
retain possession only with the consultation and consent of the
source. Source nations and peoples would likely accede to
desires of outsiders to hold cultural property in cases where
they perceive that interests such as preservation, developing
cultural education, understanding, and respect can be attained
in that way.
The property aspect of cultural property, that which
requires its physical preservation, can best be served by
developing a program of transfer of funding, technology, and
expertise. The model for such transfers is to be found in the
international programs for environmental protection. Both
environmental protection and protection of cultural property
involve common interest of the nations and peoples of the
world, involve problems of broad scope, and are beyond the
capability of individual nations, peoples, or groups to resolve.
Programs of transfers have been accepted, proven workable,
and achieved the goal of improving the environment.
I. The Nature of Cultural Property ................... 1037
A. Two Aspects of Cultural Property .............. 1037
B. The Definition of Cultural Property ............ 1040
C. Who Owns the Past? . .......................... 1042
D. The "Best Interest" of the Objects ............. 1045 II. The History of Domestic and International
Protection of Cultural Property .................... 1046
A. Protection From the Rigors of War ............ 1047
Cultural Heritage .............................. 1049
Property ....................................... 1051
D. Regulation of Traffic in Cultural Property ...... 1052
E. The Movement Toward Repatriation ........... 1055 III. The Poles of the Argument Over Protection of
Property Aspect .................................... 1058
Property Aspect? ............................... 1059
A spect? ........................................ 1062
Issues .......................................... 1064
Property ....................................... 1067
1. Dispute Resolution Mechanisms ............ 1067
2. Codification of New Standards .............. 1068
3. Cooperative Solutions ...................... 1070
4. Tighter International Regulation ............ 1071 IV. A New Proposal .................................... 1071
Property ....................................... i072
Property ....................................... 1074
1. Learning From a Success Story of
Ozone Layer .................... ........... 1075
2. Apples and Oranges? Is There a Basis for
Problems? .................................. 1079
C. What to Transfer and How? ................... 1081
1. Funding .................................... 1081
2. Expertise ................................... 1082
3. Technology ................................ 1083
4. The Quid Pro Quo ......................... 1083
5. The Mechanism of Transfer ................ 1084 V. An Assessment of the Proposal: Can It Work? ..... 1085
Cultural Aspect of Cultural Property ........... 1085
Property Aspect of Cultural Property ........... 1086
1. Can It W ork? ............................... 1086
2. Avoiding the Pitfalls of Transfer of
Technology in Environmental Protection ... 1089
of Cultural Property ........................... 1091 VI. Conclusion ......................................... 1091
22. UNESCO 1970 , supra note 17, pmbl ., 823 U.N. T.S. at 232-34 , 10 I.L.M. at 289. The Preamble includes the following statement: "Considering that cultural property constitutes one of the basic elements of civilization and nationalculture, and that its true value can be appreciated only in relation to the fullest possible information regarding its origin, history and traditional setting." Id. (emphasis added). Similarly, Article 4 recognizes the importance of the categories of cultural property identified in Article I to the "cultural heritage of each State." 823 U .N. T.S. at 236-38 , 10 I.L.M. at 290 (emphasis added).
23. LEVA, supra note 6, at 74; see also WHO OWNS THE PAST? PAPERS FROM THE ANNUAL SYMPOSIUM OF THE AUSTRALIAN ACADEMY OF THE HUMANITIES (Isabel McBryde , ed. 1985 ) [hereinafter WHo OWNS THE PAST?].
34. Id . at 844.
35. See , e.g. , Jonathan S. Moore, Enforcing Foreign Ownership Claims In the Antiquities Market , 97 YALE L.J. 466 , 467 ( 1988 ) (discussing inability of source nations to protect or preserve objects of cultural significance because of lack of resources, training , and funding).
36. See supra note 13 and accompanying text (discussing Zuni War gods ).
37. See generally Hague 1954 , supra note 33 , 249 U.N.T.S. 240 . The Hague 1954 ushered in "modem" efforts to protect cultural property . See Gael M. Graham , Pro-
ments" . Id.; cf.UNESCO 1970 , supra note 17, art. 1 , 823 U.N. T.S. at 234-36 , 10 I.L.M. at 289- 90 (defining cultural property); CPIA, 19 U.S.C. § 2601 ( 1988 ) (defining cultural property).
40. UNESCO 1970 , supra note 17, art. 2 , 823 U.N.T.S. at 236. Protocol I to the 1949 Geneva Convention, produced by the Diplomatic Conference of 1974-77, included in Article 51, paragraph 6, prohibition of reprisals against cultural' property. Inclusion of the provisions concerning cultural property was a direct result of Hague 1954 . See George H. Aldrich, Prospects For United States Ratification OfAdditional Protocol I To the 1949 Geneva Conventions, 85 AM .J. INT'L L . 1 ( 1991 ).
46. Id .
47. REPORT OF THE AMERICAN COMMISSION FOR THE PROTECTION AND SALVAGE OF ARTISTIC MONUMENTS IN WAR AREAS 48-49 ( 1946 ).
48. See id. at 61 (noting military obligation to preserve and protect objects to greatest extent possible).
49. Sayre , supra note 9, at 853. Sayre also provides examples of the restitution of cultural property after World War I and World War II . Id.
50. Id . at 855. In 1801, Lord Elgin, the British Ambassador to Constantinople, claimed to have received permission from the Turkish government to remove the sculptural decoration from the Parthenon in Athens . Id.; see also LEVA, supra note 6 , at 12-13.
166. Kindt & Menefee, supra note 163, at 268; Douglas Hunter Ogden, Comment: The MontrealProtocol. Confronting The Threat To Earth's Ozone Layer , 63 WASH. L. REV. 997 , 997 - 1001 ( 1988 ).
167. Links Between Global Climate Change , Other Environmental Problems Examined, 19 Env't Rep . (BNA) 1577 (Dec. 2 , 1988 ). Ian M. Torrens of EPRI said in a paper written for the conference:
CO[21. Id . (emphasis added). Mr. Torres further suggested that "cooperation between government and industry on technology transfer, including channels of the multilateral
170. United Nations Environment Programme: Governing Council Decision On Global Climate Change , 28 I.L.M. 1330 , 1334 ( 1989 ) [Reproduced U.N.E.P. Governing Council Decision 15 /36, adopted May 25, 1989 , at its Fifteenth Session] (recommending that "the institution of programmes and measures of assistance, includ-
174. Protocol on Substances That Deplete The Ozone Layer , Sept. 16 , 1987 , reprintedin 26 I.L.M. 1550 ( 1987 ) [hereinafter Montreal Protocol].
175. Montreal Protocol, supra note 174, at 1557. Article 10 states:
176. Helsinki Declaration On The Protection Of The Ozone Layer, May 2 , 1989 , reprinted in 28 I.L.M. 1335 ( 1989 ).
placement of equipment at minimum cost to developing countries . Id. at 1335-36.
177. Montreal Protocol Parties: Adjustments And Amendments To The Montreal Protocol On Substances that Deplete The Ozone Layer, 30 I.L.M. 541 ( 1991 ). Article 10A states:
graph 1 of Article 5; and
and most favourable conditions . Id. at 551.