Moving Beyond Cultural Nationalism: Communities as Claimants to Cultural Heritage

By Jenna Zhang, J.D. Candidate at UC Berkeley School of Law, Class of 2020

Inherent in the idea of cultural heritage as property—or, as it was previously known, cultural property1—is the idea of ownership. All property has an owner. But in the context of cultural heritage, identifying that owner is a challenge.2 Is cultural heritage the property of all mankind, valuable because of what it teaches us about the collective human experience? Should nation-states be the guardians of the cultural heritage that comes from within their borders? Or is cultural heritage highly localized, the product and property of the specific community and culture that produces it? International law is still struggling to answer this question.3

This essay traces the development of international cultural heritage law from the 1954

Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954 Hague

Convention)4 to the present day, with a focus on who should be viewed as the “owner” of this heritage. Part II compares cultural internationalism, represented by the 1954 Hague Convention, with the more modern approach of cultural nationalism, adopted by the 1970 Convention on the

Means of Prohibiting and Preventing the Illicit Import Export and Transfer of Ownership of

Cultural Property (1970 UNESCO Convention).5 Part III discusses who gets left out of the nationalist scheme for protecting cultural heritage. Specifically, I look at three major gaps in the

1970 UNESCO Convention: cultures that span multiple modern-day nations, cultures that are a

1 The terminology used in the discussion of cultural heritage varies widely between the sources. The focus of this paper is not the distinction between the terms “property” and “heritage” or “patrimony,” and therefore I will use “cultural heritage” throughout the piece. For a discussion of the “heritage” versus “property” discourse, see Kathryn Last, The Resolution of Cultural Property Disputes: Some Issues of Definition, in RESOLUTION OF CULTURAL PROPERTY DISPUTES 53, 54–64 (Int’l Bur. Of the Permanent Court of Arbitration ed., 2004). 2 See CRAIG FORREST, INTERNATIONAL LAW AND THE PROTECTION OF CULTURAL HERITAGE 7–13 (2010). 3 See JANET BLAKE, INTERNATIONAL CULTURAL HERITAGE LAW 12 (2015). 4 Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, S. Treaty Doc. 106-1, 249 U.N.T.S. 240 [hereinafter 1954 Hague Convention]. 5 Convention on the Means of Prohibiting and Preventing the Illicit Import Export and Transfer of Ownership of Cultural Property, Nov. 14, 1970, 823 U.N.T.S. 231 [hereinafter 1970 UNESCO Convention].

minority within their nation, and cultures in diaspora. While some commentators have resigned themselves to a nationalist approach, arguing that international law is structured around nation- states as actors,6 Part IV argues that there is space for recognizing community ownership within international law.

II. Cultural Internationalism vs. Cultural Nationalism

In his seminal 1986 article, Professor John Merryman offered two ways of thinking about cultural heritage: cultural internationalism, represented by the 1954 Hague Convention, and cultural nationalism, represented by the 1970 UNESCO Convention.7 While most scholars today would argue there are more than two ways of thinking about cultural heritage,8 Merryman’s framework is helpful to understanding the evolution of international law from focusing on protecting cultural heritage for all mankind to privileging claims of the nation-state above all else.

The 1954 Hague Convention states that “damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its

9 contribution to the culture of the world.” [MR1][JZ2]This statement can be read as a “cosmopolitan notion of a general interest in cultural property . . . apart from any national interest.”10 It is important to remember the historical moment in which the Hague Convention was convened—the aftermath of the terrible destruction of cultural property that occurred during World War II.11 The

6 See PATTY GERSTENBLITH, ART, CULTURAL HERITAGE, AND THE LAW 641 (3rd ed. 2012) [hereinafter GERSTENBLITH, ART AND THE LAW]. 7 See John Merryman, Two Ways of Thinking About Cultural Property, 80 AMERICAN JOURNAL OF INTERNATIONAL LAW 831, 831–32 (1986). 8 See, e.g., Francesco Francioni, The Evolving Framework for the Protection of Cultural Heritage in International Law, in CULTURAL HERITAGE, CULTURAL RIGHTS, CULTURAL DIVERSITY: NEW DEVELOPMENTS IN INTERNATIONAL LAW 3, 3 (Silvia Borelli & Federico Lenzerini eds., 2012). 9 1954 Hague Convention, Preamble. 10 Merryman, supra note 7, at 841. 11 See Eric A. Posner, The International Protection of Cultural Property: Some Skeptical Observations, 8 CHI. J. INT’L L 213, 215 (2007). For example, many famous paintings such as Vincent Van Gogh’s “Painter on His Way to Work” and Gustave Courbet’s “The Stone Breakers” were destroyed by bombs during World War II. See Zuzanna Stanska, 10 Most Important Masterpieces Lost During II World War, DAILYART (Jan. 26, 2017), https://www.dailyartmagazine.com/10-important-masterpieces-lost-ii-world-war/.

1954 Hague Convention captures the view that cultural heritage is part of the human experience regardless of where it comes from or currently resides.12 Therefore, the Convention places the burden of protecting cultural heritage on the international community at large.13 Cultural internationalism is a view often espoused by art collectors and museum curators who seek to

“highlight our shared past as a civilization.”14

In contrast, the 1970 UNESCO Convention states that “cultural property constitutes one of the basic elements of civilization and national culture, and . . . its true value can be appreciated only in relation to the fullest possible information regarding its origin, history, and traditional setting.”15 The Convention expresses a view that cultural heritage is best understood in context of its geographic origin. This thinking reflected the concerns of newly-created, developing countries that suffered great losses of cultural heritage during the colonial era.16 It also feeds into the role that cultural heritage plays in nation-building.17 The 1970 UNESCO Convention imposes an obligation on nations to protect cultural heritage within their borders, but has also been used as

12 Craig M. Bargher, The Export of Cultural Property and United States Policy, 4 DEPAUL-LCA J. ART & ENT. L. K 189, 192 (1994). 13 1954 Hague Convention, Preamble. 14 Samantha Anderson, Note, Do as I Say, Not as I Do: Inconsistencies in International Cultural Property Repatriation, 24 CARDOZO J. INT’L & COMP. L. 315, 321 (216). Indeed, the very existence of international museums, galleries, and collectors is threatened by the cultural nationalist view and accompanying legislation. See John Henry Merryman, The Free International Movement of Cultural Property, 31 N.Y.U. INT’L L. & POL. 1, 9–10 (1998). 15 1970 UNESCO Convention, Preamble. 16 See BLAKE, supra note 3, at 6; Elizabeth Coleman, Cultural Property and Collective Identity, in RETURNING (TO) COMMUNITIES: THEORY, CULTURE AND POLITICAL PRACTICE OF THE COMMUNAL 159, 160 (Stefan Herbrechter & Michael Higgins eds., 2006). For example, much of the art in African art collections housed in museums across Europe was taken from its country of origin during European colonial occupation, some lawfully and some not. Today, there is an increasing effort by European countries to voluntarily repatriate this art back to the country of origin. See Emma Jacobs, Across Europe, Museums Rethink What to do with Their African Art Collections, NPR (Aug. 12, 2019), https://www.npr.org/2019/08/12/750549303/across-europe-museums-rethink-what-to-do-with-their- african-art-collections. 17 See, e.g., Francesco Francioni, Beyond State Sovereignty: The Protection of Cultural Heritage as a Shared Interest of Humanity, 25 MICH. J. INT’L L. 1209, 1210 (2004) [hereinafter Francioni, Beyond State Sovereignty] (discussing the role that culture—meaning “language, religion, literary and artistic traditions”—played in the rise of modern nation- states in 19th century Europe). A concrete example of the role of cultural heritage in the nation-building process is the rise of “national museums” in the 19th and 20th centuries that housed collections purposefully representing a single, unified national cultural identity. Wolf-Dieter Heilmeyer, The Importance of National Cultural Property from the Perspective of the Science and Art Museums, in CULTURAL PROPERTY PROTECTION 13, 14 (Eric C. Schneider & Roseann M. Schneider eds., 2005).

justification for retention of cultural property within the nation.18 As early as the negotiations on the 1970 UNESCO Convention, this cultural nationalist view was opposed by developed nations that wanted to protect art and antiquities markets.19

III. Who Gets Left Out of Cultural Nationalism?

The shift to cultural nationalism was beneficial in that it gave former colonial nations rights to their own cultural heritage that had been exported by Europeans. And as the 1970

Convention suggests, it is in line with the now-prevailing view that cultural heritage is best understood in context.20 But the cultural nationalism model is not without its flaw. The fundamental problem with linking ownership of cultural heritage to the nation-state is that modern-day nations do not map one-to-one to past or present cultures.21 Nor are modern nations monolithic cultural entities.22 For example, the Ottoman Empire, and now modern-day Turkey, as a crossroads between Asia and Europe, contains antiquities from Greek, Roman, and Egyptian cultures that have no link to modern Turkish culture.23 Another example is the Koh-i-Noor diamond in the English crown, acquired from a Sikh kingdom in modern-day Lahore in the mid- nineteenth century, which both Pakistan and India claim as their own cultural heritage.24 In this section, I focus on three major groups left out by the nationalist model: (a) cultures that span multiple modern states, (b) cultural minorities within a state, and (c) communities in diaspora.

a. Cultures that Span Multiple Modern States

18 Merryman, supra note 7, at 844. 19 FORREST, supra note 2, at 166. 20 See FORREST, supra note 2, at 15; Patty Gerstenblith, The Public Interest in the Restitution of Cultural Objects, 16 CONN. J. INT’L L. 197, 198–201 (2001). 21 See FORREST, supra note 2, at 145–48 (2010). 22 Francioni, Beyond State Sovereignty, supra note 17, at 1210. 23 See BLAKE, supra note 3, at 3. 24 FORREST, supra note 2, at 147.

A case involving the United States’ Convention on Cultural Property Implementation Act

(“CPIA”), 25 the domestic legislation enacting the 1970 UNESCO Convention, illustrates the dangers of tying historic cultures to modern-day nation-states. In United States v. Eighteenth

Century Peruvian Oil,26 Exipion Ernesto Ortiz-Espinoza, a Bolivian citizen, brought two paintings into the United States from Bolivia.27 An agent of Ortiz-Espinoza organized a sale of the paintings to St. Luke’s Gallery in Washington, D.C.28 When the gallery asked for documentation of ownership, Ortiz-Espinoza submitted a letter stating the paintings were of the Cuzco School and had originated in Alto Peru (modern-day Bolivia), but was unable to provide any official export documentation.29 The gallery then sent the paintings to a Peruvian art expert for authentication, and the art expert, suspecting the paintings were stolen, alerted the FBI.30 The FBI sent images of the paintings to an expert in Peru who concluded the paintings “belong[ed] to the Peruvian cultural patrimony.”31 The FBI then seized the paintings pursuant to the CPIA.32

Ortiz-Espinoza’s main argument in opposition to the Government’s seizure of the paintings was that they were from Bolivia, not Peru.33 The court held that the true country of origin was irrelevant as both Bolivia and Peru were parties to the 1970 UNESCO Convention and both countries had bilateral agreements with the United States as required by the CPIA to enact import

25 19 U.S.C. § 2601 et seq. (2012). 26 United States v. Eighteenth Century Peruvian Oil on Canvas Painting of the “Doble Trinidad” or “Sagrada Familia con Espiritu Santo y Dios Padre,” and Seventeenth Century Peruvian Oil on Canvas Painting of “San Antonio de Padua” and “Santa Rosa de Lima”, 598 F. Supp. 2d 618 (E.D. Va. 2009). 27 Id. at 619. 28 Id. 29 Id. at 619–20. 30 Id. at 620. 31 Id. 32 Id. 33 Id. at 624.

restrictions.34 Either way the paintings were subject to seizure, and the Department of Justice could later conduct an investigation as to which country should gain possession.35

The court’s indifference to the country of origin shows the problem of trying to impute a past culture onto modern nations. In this case, the culture of origin spanned two nations, both of which had agreements with the United States. But that may not be the case for many artifacts from cultures that span multiple modern nations. If international law seeks to protect cultural heritage, it should not allow an artifact to slip through domestic import controls because of a technicality.

b. Cultural Minorities Within a State

Nation-states can be protectors of cultural heritage when it is in their interest, but can the ruling faction be called upon to defend the cultural heritage of a minority group? Two modern examples demonstrate the possible destruction of cultural heritage when one group targets another within its own state. During the Balkan Wars in the former Yugoslavia, cultural sites such as the

Old Bridge in Mostar and the library of Sarajevo were intentionally destroyed as part of a campaign of ethnic cleansing and genocide.36 Similarly, in 2001 the Taliban, then-ruling party in

Afghanistan, intentionally destroyed two giant Buddha statutes carved into the cliffs of Bamiyan because the Buddhas were considered “an affront to Islam.”37 These statutes symbolized the multicultural history of Afghanistan, which the Taliban attempted to wipe out in favor of Islamic culture.38

34 Id. at 624–25. 35 Id. at 625. The paintings were ultimately returned to Peru. Restoring Cultural Heritage: 18th-Century Paintings Returned to Peru, FBI (Apr. 8, 2010), https://archives.fbi.gov/archives/news/stories/2010/april/peru_040810/restoring-cultural-heritage-18th-century- paintings-returned-to-peru. 36 Patty Gerstenblith, From Bamiyan to Baghdad: Warfare and the Preservation of Cultural Heritage at the Beginning of the 21st Century, 37 GEO. J. INT’L L. 245, 269–70 (2006). 37 Id. at 246–47. 38 See id; Fiona MacMillan, The Protection of Cultural Heritage: Common Heritage of Humankind, National Cultural Patrimony or Private Property, 64 N. IR. LEGAL Q. 351, 355 (2013).

While it is true that both the actions taken in former Yugoslavia and by the Taliban represent destruction of cultural heritage, not its illicit import or export as covered by the 1970

UNESCO Convention, it is not hard to imagine a similar circumstance where a more powerful group within a country refuses to protect the cultural heritage of a minority group from such illicit trade. Article 5 of the 1970 UNESCO Convention puts the primary responsibility on states to

39 protect their own cultural heritage through laws and education. [MR3]Article 9 allows for international cooperation, but again puts the burden on states whose cultural heritage is in jeopardy to call on the international community for assistance.40 This puts minority cultures at the mercy of the national government, perhaps controlled by a hostile group, to protect their cultural heritage, and leaves the international community free to do nothing unless called upon.41

c. Communities in Diaspora42

The case Agudas Chasidei Chabad of United States v. Russian Federation43 serves as an example of the weak position held by communities in diaspora within the cultural nationalist framework. The case involved a religious group based in New York seeking return of religious writings held by the Russian Federation that had been seized during the Russian Civil War in the early twentieth century and the Nazi invasion of Poland in 1941.44 The Russian Federation

39 1970 UNESCO Convention, art. V. 40 Id. at art. IX. 41 The unsuccessful attempts of Native American tribes in the United States to repatriate cultural artifacts held abroad demonstrates the limited power of minority communities and the necessity of assistance from the national government. See generally Aaron Haines, Note, Will the STOP Act Stop Anything? The Safeguard Tribal Objects of Patrimony Act and Recovering Native American Artifacts from Abroad, 39 CARDOZO L. REV. 1091 (2018). 42 The term “diaspora” is used to distinguish immigrants who left their home countries out of necessity from those who left voluntarily, as was the case with colonial settlers. Charles E. Orser Jr., Transnational Diaspora and Rights of Heritage, in CULTURAL HERITAGE AND HUMAN RIGHTS 92, 92 (Helaine Silverman & D. Fairchild Ruggles eds., 2007). 43 Agudas Chasidei Chabad v. Russian Fed’n, 466 F. Supp. 2d 6 (D.D.C. 2006). 44 Id. at 10–13. Chabad Chasidism is an Orthodox Jewish movement founded in 1775 in the Russian Empire. The leader of Chabad Chasidism, called a Rebbe, maintained a library (“the Library”) consisting of over 12,000 books and 381 manuscripts and an archive (“the Archive”) of over 25,000 pages of the Rebbes’ teachings, correspondence, and other records. In 1915, the Fifth Rebbe of Chabad Chasidism had to flee his town from the advancing German army and took some books and the Archive with him, storing the rest of the Library in a private warehouse in Moscow. The events of World War I and the Russian Civil War prevented the Rebbe from returning for the Library. His son

claimed the court lacked jurisdiction under both the Foreign Sovereign Immunities Act and the doctrine of forum non conveniens,45 and ultimately refused to return the books and manuscripts.46

Beyond the challenge of involving three different entities throughout history (the Russian

Empire, the Soviet Union, and the Russian Federation), this case is further complicated by the fact that the claimants resided outside the cultural heritage’s country of origin.47 Under the 1970

UNESCO Convention, the cultural heritage of each nation is “cultural property created by the individual or collective genius of nationals of the State concerned.”48 Even if the claimants in

Agudas Chasidei Chabad of United States v. Russian Federation were able to convince the United

States government to ask Russia to return the objects, they would likely have lost a claim for restitution under the 1970 UNESCO Convention, because the artifacts were created within what became the Russian Federation. Furthermore, the 1970 UNESCO Convention gives nations claim to “cultural property of importance to the State concerned created within the territory of that State by foreign nationals or stateless persons resident within such territory.”49 This is particularly problematic for communities in diaspora, as they may be fleeing their homelands because of persecution and consequently may be stateless for long periods of time, leaving their cultural heritage creations for other nations to claim. Allowing nations dominion over all cultural heritage within their borders fails to recognize the realities of human movement and the need for cultural heritage to help maintain culture, especially when the community has been dislocated from its original context.

eventually took over as the Sixth Rebbe and fled to Latvia and later Poland. The Sixth Rebbe fled to the United States in 1940 and had to leave the Archive behind in Poland. It was seized by the Nazis and then later by the Soviets and returned to Russia. Id. 45 Id. at 10. 46 GERSTENBLITH, ART AND THE LAW, supra note 6, at 576. 47 See Agudas Chasidei Chabad v. Russian Fed’n, 466 F. Supp. 2d at 10–11. 48 1970 UNESCO Convention, art. IV. 49 Id.

IV. What would a Framework where Communities are Claimants to Heritage Look Like?

Given the shortcomings of a cultural nationalist framework, finding an alternative framework is necessary to strengthen the protection of cultural heritage laws. But what does international law look like if states are not the primary actors? Since the 1970 UNESCO

Convention, international law has begun to recognize the role communities play in the production, maintenance, and protection of culture.50 Additionally, there is a trend towards viewing cultural rights as part of a broader human rights framework.51 While both of these ways of thinking about cultural heritage involve communities as claimants, they ultimately require the international community as a whole to ensure their enforcement. Thus, this shift from nations to communities as claimants represents a kind of return to the cultural internationalism view of heritage.52

a. International Law Recognizing the Role of Communities in Cultural Heritage

International treaties since the 1970 UNESCO Convention have recognized that nation- states are not the only owners of cultural heritage. Moving away from the solely nationalist view,

Article 3 of the 1995 UNIDROIT Convention on Stolen or Illegally Export Cultural Objects (1995

UNIDROIT Convention) states that “cultural objects” covered by the Convention include those owned by: “(a) a Contracting State[;] (b) a regional or local authority of a Contracting State; (c) a religious institution in a Contracting State; or (d) an institution that is established for an essentially cultural, educational, or scientific purpose in a Contracting State.”53 The Convention then goes on to further allow claims of restitution by tribal or indigenous communities within a state.54

50 See Coleman, supra note 16, at 161. See, e.g., UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, June 24, 1995, 2421 U.N.T.S 457 [hereinafter 1995 UNIDROIT Convention]; Convention for the Safeguarding of the Intangible Cultural Heritage, Oct. 17, 2003, 2368 U.N.T.S. 33 [hereinafter 2003 UNESCO Convention]. 51 See FORREST, supra note 2, at 8. 52 See Francioni, Beyond State Sovereignty, supra note 17, at 1211. 53 1995 UNIDROIT Convention, supra note 50, at art. III. 54 Id.

However, a major drawback of the Convention is that communities are still defined by their relationship to a Contracting State. Additionally, the 1995 UNIDROIT Convention, with only 46 signatories, has a much smaller reach than the 1970 UNESCO Convention.55 Despite these limitations, the 1995 UNIDROIT Convention shows clear signs of international law moving towards a more community-inclusive concept of ownership.

International law fully recognized the role of communities in the cultural heritage space in the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage56 (2003

UNESCO Convention).57 The Convention immediately begins by “recognizing that communities . . . play an important role in the production, safeguarding, maintenance and recreation of the intangible cultural heritage.”58 Based on this conclusion, the Convention’s stated purposes are to safeguard and respect intangible cultural heritage “of communities, groups, and individuals.”59 The Convention requires state parties to work with groups and communities within their territory to identify intangible cultural heritage,60 and to give communities “the widest possible participation” in the management of this heritage.61 The Convention also ensures international participation in the protection of intangible cultural heritage by creating an

Intergovernmental Committee that will create a list of intangible heritage “in need of urgent safeguarding.”62 However, one of the biggest limitations of the Convention is that only state

55 See Status, UNIDROIT: INT’L INSTITUTE FOR THE UNIFICATION OF PRIV. L. (Feb. 24, 2019), https://www.unidroit.org/status-cp. 56 2003 UNESCO Convention, supra note 50. 57 Admittedly, the 2003 UNESCO Convention is not perfectly on point for this discussion of community claims to cultural heritage for two reasons. First, the purpose of the Convention is to “safeguard” intangible cultural heritage, and the Convention does not discuss “ownership” as the 1970 UNESCO Convention does. See id. at art. I(a); 1970 UNESCO Convention, supra note 5, at Preamble. Second, the 2003 UNESCO Convention covers specifically intangible cultural heritage, not tangible objects, defined as “the practices, representations, expressions, knowledge, skills—as well as the instruments, objects, artefacts and cultural spaces associated therewith—that communities . . . recognize as part of their cultural heritage.” 2003 UNESCO Convention, supra note 50, at art. II. 58 Id. at Preamble. 59 Id. at art. I. 60 Id. at art. XI. 61 Id. at art. XV. 62 Id. at art. V, art. XVII.

parties can request intangible heritage be added to the list, which again privileges the state as the primary actor.63 While the 2003 UNESCO Convention does not fully give communities independent legal rights to their cultural heritage, it is certainly a step in the right direction and can serve as a model for international law on tangible cultural heritage.

b. Cultural Heritage as a Human Right

Although international treaties still provide no explicit mechanism for non-state actors to bring their own claims of ownership of cultural heritage without the support of a nation-state, international human rights law may afford some protection. The concept of the right to culture as a human right is not new. Rafael Lemkin, the author of the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), attempted to include cultural genocide in the Convention, which would have prohibited the intentional destruction of cultural heritage.64 The concept of cultural genocide was unfortunately not included in the Genocide

Convention due to opposition from negotiating states.65 However, the Universal Declaration of

Human Rights, adopted one day after the Genocide Convention, specifically notes cultural rights as essential to one’s “dignity,”66 the core concept of the declaration.67 Later, the 1966 International

Covenant on Economic, Social and Cultural Rights recognized “the right of everyone to take part in cultural life.”68 These agreements show that the foundation for cultural rights as human rights exists within international law.

63 See id. at art. XVII. 64 Patty Gerstenblith, The Destruction of Cultural Heritage: A Crime Against Property or a Crime Against People, 15 J. MARSHALL REV. INTELL. PROP. L. 336, 342–43 (2016). 65 Id. at 343. 66 G.A. Res. 217 (III) A, Universal Declaration of Human Rights, at 75 (Dec. 10, 1948) 67 Francesco Francioni, Culture, Heritage and Human Rights: An Introduction, in CULTURAL HUMAN RIGHTS 1, 8 (F. Francioni & M. Scheinin eds., 2008) [hereinafter Francioni, Culture, Heritage and Human Rights]. 68 G.A. Res. 2200A (XXI), International Covenant on Economic, Social and Cultural Rights, at art. XV.I(a) (Dec. 16, 1966).

If cultural heritage is part of the very production and maintenance of cultural identity, then the cultural rights that exist within the broader human rights framework can and should be read as encompassing a right to own and access the cultural heritage of one’s community.69 Specific protection for tangible cultural heritage can further be included within other human rights, such as the right to property, the right to self-determination, and the rights to participate in cultural life.70

One of the major challenges of understanding cultural heritage rights as part of human rights is that cultural heritage rights involve the rights of a cultural group as a whole, whereas human rights are generally seen as individual rights.71 This creates a possible tension between individual rights and collective rights.72 Nevertheless, the advantage of placing cultural heritage within the human rights discourse is that human rights do not derive from the nation-state and require the international community to play an active role against violations of human rights by states against their own people. Thus, cultural heritage as a human right may be the strongest legal framework for inclusive protection of cultural heritage for all communities.

V. Conclusion: A Return to Cultural Internationalism

Cultural heritage does not belong to all of humanity, but humanity should work collectively to protect it. Cultural internationalism should not be used to justify the art and antiquities trades and encyclopedic museum collections in powerful nations. However, cultural nationalism alone cannot be relied upon to adequately protect claims to cultural heritage by all

69 See Francesco Francioni & Lucas Lixinski, Opening the Toolbox of IHRL for Heritage, in HERITAGE, CULTURE AND RIGHTS 11, 18 (Andrea Durbach & Lucas Lixinski eds., 2017); Ana Filipa Vrdoljak, Heritage, Human Rights, and War, in HERITAGE, CULTURE AND RIGHTS 61, 72 (Andrea Durbach & Lucas Lixinski eds., 2017) 70 Ana Filipa Vrdoljak, Human Rights and the Illicit Trade in Cultural Objects, in CULTURAL HERITAGE, CULTURAL RIGHTS, AND CULTURAL DIVERSITY: NEW DEVELOPMENTS IN INTERNATIONAL LAW 107, 127 (Silvia Borelli & Federico Lenzerini eds., 2012). 71 Francioni, Culture, Heritage and Human Rights, supra note 67, at 4. 72 Id.

communities and cultural groups. Instead, a new era of cultural internationalism should call on the international community to help communities protect their rights to their own cultural heritage.