OPENING REMARKS mony puzzle, we’re talking at least implicitly

about wholes that are much more than the Opening Remarks RICHARD BRILLIANT (Director, The sums of their parts. Because in or out of dis- Italian Academy for Advanced Studies in pute, these pieces of the larger cultural-proper- America): We gave this conference the general ty story have the potential to leap way past the title “Who Owns Culture?” We did not define providence disputes or the finite limits of mar- what “culture” is, and perhaps that definition ket price or aesthetic value to claims like will emerge over the next two and a half days. nationhood and nationalism, bitter legacies of persecution and war, cultural identity and cul- We are here in a very opportune moment. The tural war, plunder and atonement, pride, pos- nature or dimension of cultural property has session, and obsession. None of these fit easily been under serious consideration for the last with such rational values as openness, access or several years. We are concerned here about not free exchange. We need look no further than to only the nature of cultural property, but also the terrible events in the former Yugoslavia for the distinction that might be developed cases of looting of cultural property. between intellectual and material property. A few notes that others might find useful to I think there is an issue here, an important one, expand on or to dispute: First, the arrival of so of knowledge. Sometimes, by looking at culture many once-arcane cultural-property issues on as if it was “the other side,” we are aware that the front pages of newspapers of late raises the acculturation is a matter of the increase in larger question, “Why now?” What part of the knowledge. I would like to think that one of cultural-property phenomenon flows from the the most important properties of culture itself end of the cold war? From statutes of limita- is that a work of art—a work of thought—cre- tions running out? From trends in art markets? ates opportunities for greater knowledge, which From the contemporary cult of “the market”? is our responsibility to share. From shifts in relations between countries of origin and countries in which collectors and MICHAEL JANEWAY (Director, National traders are active? From trends in globalization Arts Journalism Program): Conferences have and international agreement? From trends in taken place within the world of cultural-prop- sociopolitical fragmentation or separatism? erty expertise. But between that world and the public lies a vast gulf that only journalism can Second, the international scope of this confer- bridge. In attempting to build such bridges, we ence underscores the distance between acknowledge that the universe of issues that fall Americans’ experience of cultural-property under the headings of “cultural property” and and patrimony issues and the experience of “cultural patrimony” is vast. Some of those older nations. issues are separate, some intersect, almost all are thorny, and some are the cause of tension or Third, on a personal note, it strikes me that— dispute. In taking on so many of those issues as the kind of investigative-reportorial interest here, we risk being too far-flung. And we that cultural-property issues have aroused in haven’t even taken on intellectual property, the U.S. is in many cases new—for many in landmark and preservation issues, and cultural the art world, the idea of being covered jour- property issues in the age of the Internet. nalistically as government or business routine- ly are is also new and even shocking. In this A reason for spreading the canvas so broadly is forum are some chances to develop better to enrich awareness among journalists and mutual awareness of what will, in the nature experts alike, so that when we talk and write of active journalistic inquiry, always be to about a piece of the cultural-property or patri- some extent an adversarial relationship.

11 National Arts Journalism Program OPENING ADDRESS: was OK. For some of the apes had “WHO OWNS CULTURE? straightened their backbone and started walking upright, but there was one tribe, WHY NOW AN INTERNATIONAL unfortunately that lingered behind. And CONFERENCE ON CULTURAL that was the nigger. If you apes will PATRIMONY?” behave like gentlemen, who knows what could happen? The battle could go round. SPEAKER: But first it behooves me, Corporal Opening Address Lestrade, to perform my duty according DEREK WALCOTT, 1992 Nobel Laureate to the rules of the majesty’s government in Literature so don’t interrupt. Please let me examine the Lion of Judah.” WALCOTT: I’m going to read a couple of sections from a play of mine called “Dream on So he examines him. And this is the conse- Monkey Mountain.” I think that what I’m quence of the examination. going to read may demonstrate or encapsulate the topic that we have for the next couple of “You forget your name. You’re a racist days. coward, your denominational affiliation is Catholic. Therefore, as the Roman law In this scene, a mulatto corporal called had pity on our blessed Savior, by giving Lestrade, because he straddles two cultures, is him in extremis a draught of vinegar talking to Makak, who has been arrested for which in your own language you would drunken behavior in a small village. Makak, or call ‘vinegre,’ I shall give all and Sunday “the ape,” which is what we are all supposed here, including these two thieves, a hand- to come from, is the most-reduced human ful of rum before I press my charge.” being possible. He is ugly, he feels old, he is black, he is poor, his occupation is that of a When he speaks in the passion of his con- charcoal burner. When he is arrested, his tempt, he makes a number of mistakes gram- inquisitor is this man Lestrade, who’s such a matically but he does them with a lot of confi- complete convert to his culture that he serves dence. as a policeman. And he serves it with the total fury of someone who is a convert, and who in “My noble judges. When this crime has that position may have a great deal of self-con- been categorically examined by due tempt, as well as admiration for the thing he is process of law, and when the motive of supposed to be a part of but doesn’t quite feel the hereby accused by whereas and ad that he is. So the corporal is talking to Makak hoc shall be established without dichoto- who is in his cell, and there are two other my, and long after we have perambulated thieves next to him. And this is the gist of the through the labyrinthine bewilderment of corporal’s contempt for this black man he has the defendant’s ignorance, let us hope arrested. that justice, whom we all serve, will not only be done, but will appear, my lords, “In the beginning was the ape, and the to have itself been done. Ignorance is no ape had no name so God called him Man. excuse. Ignorance of the law is no excuse. Now there were various tribes of the ape; Ignorance of one’s own ignorance is no it had gorilla, baboon, orangutan, chim- excuse. This is a prisoner. I will ask the panzee, the blue-arsed monkey, and God prisoner to lift up his face. looked at his handiwork and saw that it

12 Who Owns Culture? “My lords, as you can see, this is a being all this was rightly received with civic

without a mind, a will, a name, a tribe of laughter and horror, the prisoner, in des- Opening Address its own. I will ask the prisoner to turn peration and shame, began to willfully out his hands. I will spare you the sound damage the premises of the proprietor, of that voice which shall come from a Felicien Alcindor, urging destruction on cave of darkness, dripping with horror. church and state, claiming that he was the These hands are the hands of Esau, the direct descendant of African kings, a heal- fingers are like roots, the arteries as hard er of leprosy, and the savior of his race. as twine, and the palms are seamed with coal. But the animal is tamed and obedi- You claimed that with the camera of your ent. Walk around the cage.” eye you had taken a photograph of God, and all that you could see was blackness. Now he makes his procession. Blackness, my lords. What did the prison- er imply? That God was neither white nor “His rightful name is unknown, yet on black but nothing? That God was not Saturday evening July 25, to wit tonight, white but black, that he had lost his faith, at exactly three hours ago, to wit 5:30 or what?” p.m., having tried to dispose of four bags of charcoal in the market of Quatre This is in Act I. In Act II, after a lot of Chemin, to wit this place, my lords, in changes, the corporal is a total convert to which aforesaid market your alias, to wit being a complete African. He is against any- Makak, is well-known to all and Sunday. thing white in the second half of the play. And The prisoner, in a state of incomprehensi- he addresses the court. Makak has now ble intoxication from money or monies become king of his tribe, and the corporal accrued by the sale of self-said bags, is now talks to the assembled tribes. reputed to have entered the licensed alco- holic premises of one Felicien Alcindor, “Wives, warriors, chieftains! The law whom the prisoner described as an agent takes no sides. It changes the complexion of the devil, the same Felicien Alcindor, of things. History is without pardon, jus- being known to all and Sunday as a God- tice is hawk-swift, but mercy everlasting. fearing honest Catholic. When some We have prisoners and traitors, and they intervention was attempted by those pres- must be judged swiftly. The law of a ent, the prisoner then began to become country is the law of that country. Roman vile and violent. He engaged in a blasphe- law, my friends, is not tribal law. Tribal mous, obscene debate with two other vil- law, in conclusion, is not Roman law. lagers, Hannibal Dolcis and Market Therefore, wherever we are, let us have Inspector Caifas Joseph Pamphilion, justice. We have no time for patient describing in a foul, incomprehensible reforms. Mindless as the hawk, impetuous manner, a dream which he claims to have as lions, as dried of compassion as the experienced, a vile, ambitious, and bowels of a jackal. Elsewhere, the swift- obscene dream, elaborating on the dream ness of justice is barbarously slow, but our with vile words and a variety of sexual progress cannot stop to think. In a short obscenities both in language and posture. while, the prisoners shall be summoned, Further, the prisoner, in defiance of Her so prepare them, Basil and Pamphilion. Majesty’s government, urged the afore- First, the accused. After them, the trib- mentioned villagers to join him in sedi- utes. Read them, Basil! tion and defilement of the flag. And when

13 National Arts Journalism Program Basil reads: believes in is not in the works of man but in the authentication of the works of a force “They are Noah, but not the son of Ham, beyond man. Aristotle, I’m skipping a bit, Abraham Lincoln, Alexander of Macedon, Where are your monuments, your battles, Shakespeare, I can cite relevant texts, martyrs? Plato, Copernicus, Galileo, and perhaps Where is your tribal memory? Sirs, Ptolemy, Christopher Marlowe, Robert E. in that gray vault. The sea. The sea Opening Address Lee, Sir John Hawkins, Sir Francis Drake, has locked them up. The sea is History. the Phantom, Mandrake the First, there was the heaving oil, Magician…Tarzan, Dante, Sir Cecil heavy as chaos; Rhodes, William Wilberforce, the then, like a light at the end of a tunnel, unidentified author of “The Song of the lantern of a caravel, Solomon,” Lorenzo de Medici, Florence and that was Genesis. Nightingale, Al Jolson, Horatio Nelson, Then there were the packed cries, but why go on? Their crime, whatever the shit, the moaning: their plea, whatever extenuation of cir- Exodus. cumstances, whether of genius or geogra- Bone soldered by coral to bone, phy, is that they are indubitably, with the mosaics possible exception of Alexandre Dumas, mantled by the benediction of the shark’s shadow, Sr. and Jr., and Alexis, I think it is that was the Ark of the Covenant. Pushkin, white. Some are dead and can- Then came from the plucked wires not speak for themselves. But a drop of of sunlight on the sea floor milk is enough to condemn them, to ban- the plangent harps of the Babylonian bondage, ish them from the archives of the bo-leaf as the white cowries clustered like manacles and papyrus, from waxen tablet and the on the drowned women, tribal stone. For you, my Lords, are and those were the ivory bracelets shapers of history. We wait your judg- of the Song of Solomon, ment, O tribes.” but the ocean kept turning blank pages looking for History. I’ve used these sections to demonstrate the Then came the men with eyes heavy as anchors modern ambiguity that can happen in the who sank without tombs, “If we own, Third World, or in any culture when its poli- brigands who barbecued cattle, cies and its tenets are reversed. Nothing much leaving their charred ribs like palm leaves on the how deeply, changes in terms of the conduct of the power- shore, less becoming powerful. then the foaming, rabid maw how truly, do of the tidal wave swallowing Port Royal, we own?” In this poem, called “The Sea is History,” and that was Jonah, there are two voices. One of them may be the but where is your Renaissance? voice of culture, the proprietary voice, the one Sir, it is locked in them sea sands that owns and examines and says, “When are out there past the reef’s moiling shelf, you going to be as great as we are? When will where the men-o’-war floated down; you stop imitating? When will you, in fact, strap on these goggles, I’ll guide you there myself. become us?” It’s all subtle and submarine, through colonnades of coral, The response to that by the other voice is per- past the gothic windows of sea fans haps feeble, but convinced that what it to where the crusty grouper, onyx-eyed,

14 Who Owns Culture? blinks, weighted by its jewels, like a bald queen; truly does someone in Martinique own the

and these groined caves with barnacles French language? And how much of a loss has Opening Address pitted like stone there been, how much of a gain? are our cathedrals, and the furnace before the hurricanes: I think the answer is that it is both increasing Gomorrah. Bones ground by windmills and diminishing, and that it diminishes as it into marl and cornmeal, gets closer and closer to the point of absurdity. and that was Lamentations— To ask that question now is to avoid the reali- that was just Lamentations, ty that what has happened to the Spanish lan- it was not History; guage with writers such as Marquéz and Paz, then came, like scum on the river’s drying lip, or what has happened to the English language the brown reeds of villages with writers like V.S. Naipaul or Rushdie, mantling and congealing into towns, means that it is no longer a matter of the “The whole and at evening, the midges’ choirs, empire owning the language. But does that and above them, the spires mean that if the empire does not own the lan- concept of lancing the side of God guage, that it shares it, or even is willing to do asking ‘Who as His Son set, and that was the New Testament. that? I do not think that it is, because I think Then came the white sisters clapping the reservoir of preservation lies in criticism owns culture?’ to the waves’ progress, and the reality of the continuation of power, and that was Emancipation— in terms of publishing, distribution, and sim- is immediately jubilation, O jubilation— ple economics. vanishing swiftly answered by as the sea’s lace dries in the sun, So the whole concept of asking “Who owns but that was not History, culture?” is immediately answered by ‘Whoever has that was only faith, “Whoever has the money.” That is the answer. and then each rock broke into its own nation; And whoever has the most money owns the the money.’” then came the synod of flies, culture, because the way to manipulate the then came the secretarial heron, ownership of that culture is via books and then came the bullfrog bellowing for a vote, publicity and other things. fireflies with bright ideas and bats like jetting ambassadors That may be too crass a reply, but I think it is and the mantis, like khaki police, true. If you asked, “Who owns film?” you’d and the furred caterpillars of judges have to say, “Six people in Hollywood own examining each case closely, film.” And if you said that, you’d say that the and then in the dark ears of ferns social influence of film of the world is really and in the salt chuckle of rocks one that emanates out of Hollywood. This is with their sea pools, there was the sound very clichéd, but when you go outside it will like a rumor without any echo be true, because you will see the billboards of History, really beginning. telling you “Don’t miss X or Y.”

Our position in the Caribbean and perhaps in I think that the journey of inquiry, while it the New World is very much that of the cor- has been worth it, is probably answered not poral in the play: a position of bewilderment. only by my own resolution in terms of my It is a question that has to do with the depth direction, but also with what I’ve seen happen of possession. If we own, how deeply, how to ownership, in terms of the possession of a truly, do we own? How truly does a language and of culture. Colombian own the Spanish language? How

15 National Arts Journalism Program My education was on the island of St. Lucia, island, when I left St. Lucia and went to a in English. It was the equivalent in the cur- bigger place like Jamaica or Trinidad, the riculum of an English public school. I had a threat of division widened into a chasm. It very subtle grounding in French, Latin, histo- certainly widened once I got to America. I ry, and of course, English literature. When we had to put on my passport what I was and look back on what we in the Third World did, where I was from. There was a time when you when we look back on what we were taught had to put everything on your passport: color and how we were taught, we have a lot of con- of eyes, color of skin, all that detail. Now it’s Opening Address tradictions inside us that have to be resolved simpler. When I entered the world beyond by our work. the island, the threat of division widened into a chasm, into melodrama, into a second-rate For instance, if someone had told me then tragedy of race. that I was being “colonized,” my boyhood might have been doctrinal and joyless. If I When I wrote the phrase “second-rate tragedy,” knew that I was being inducted, drafted into and if I think of myself entering that second- something called “English culture,” by the rate tragedy, I can be a victim of that tragedy if English School of Masters, or by someone I accept that definition. I can be a victim of it who imitated both the accent and the conduct anyway, whether I accept it or not. And when of an English schoolmaster, I don’t know that we begin to make definitions as to who owns my reaction would have been satisfactory. I what, who is entitled to persecute, who is enti- think I would have resisted that idea, not tled to steal from, who is entitled to murder en because it wasn’t political or true, but because masse, then that conduct is beneath the spirit there is something much more important than of man. It is beneath the reality of the possibili- that political truth. The doctrine of being told ty of the achievement of man. that I was a colonial would have created a kind of joylessness in me. What I had then If I write from the outside about my love of was delight: a delight in verse, a delight in Dante, who am I, loving Dante? I am defined, English poetry, a delight in English literature, then, as a writer from the Caribbean who, like things I was entitled to as much as any everybody else, loves Dante but will bring English schoolboy. something special in terms of homage to the man called Dante who was an Italian who I do not believe that my possibilities were lived at a certain time. That’s not the defini- ruined or my vocation curtailed because of the tion that I can live by. I cannot live as if my politics of culture. The two backgrounds I was contribution to the love of Dante were inheriting were enriching each other even defined and restricted—or even enlarged or when they appeared different. I brought in a forgiven—by the definition of myself in linea- culture that was bilingual. I grew up with ments of people who look at me, critics or French Creole and English. I’m not sure if other human beings. there was such a sense of division in the two experiences that now one could write about it When racial difference is inflicted—defined as I do. I don’t really remember division or from the outside by authority—the writer can distance. When I left where I was and went reject it. But that definition would be preserved outside, I had to be defiant, and I had to and pursued for the sake of some kind of cul- accept or reject definitions of myself. tural purity that is not much different from being shot 41 times by police or dragged on the The two cultures—something bisected them. road behind a pickup. This could have hap- And when I entered the world beyond the pened to me, even though I have a Nobel Prize.

16 Who Owns Culture? The assailants own the culture. They are estly employed. The reality of America is that

defending it. People assail and kill and murder it is an empire, and the beauty of America is Opening Address in the name of culture, in the name of reli- that it does not want to be one, and that is gion. All these definitions are secondary to what preserves it from it, that it keeps its con- what they really are in terms of their real func- science. It does not want to conquer, it does tion. It has become difficult to define “cul- not want to take people’s property. ture” without violence, since culture includes religion, manners and art. The once-great As a reverse of this, you get Indian- and Afro- empires of Europe, France, Spain, Portugal, American literature of poignancy, of neglect, Holland have faded, quite apart from of indifference and exclusion. When this England. But certainly their original—even grows (and I think it does grow into a benign their pure—cultures have been enriched by kind of acceptance), the questions that will be the corrupting vigor of miscegenation, by an asked here are manifestations of that inquiry English literature broadened and varied by into that kind of equanimity of spirit that is writers in India, Africa and the Caribbean. required for a truly great democracy. One of “What is the complexion of that culture?” is the things that at least may be said about the “When we what the corporal asks in the play. Nobel Prize is that it is race-less and nation- less and that it ascribes its gift to whoever it begin to make One reads Frost and Whitman, and one says of considers to be worthy of it. It manifests the Frost, “He is a true great American poet.” You reality of what can happen in terms of think- definitions as hear his language and you hear our language, ing of culture not in a partisan way, but in a to who owns your language, in the language of his poems. universal or global way. “The land was ours before we were the land.” what, who is I would like to read, finally, the equivalent of Who gives Frost the right to say that? What prayer, a vision of peace that must be heard entitled to did he ask the Indians about the land? Who continually. entitles him to begin a poem about America as persecute, if the Indians have never existed? And who “The Season of Phantasmal Peace” says the land is his because of the feeling that who is entitled explorer or pilgrim has in taking it? Then all the nations of birds lifted together the huge net of the shadows of this earth to steal from. . . So even when you look at what appears to be a in multitudinous dialects, twittering tongues, manifestation of modesty, of humility, of stitching and crossing it. They lifted up then that direction (and that is also true in Whitman), the shadows of long pines down trackless slopes, conduct is you have to take a few steps backward and say, the shadows of glass-faced towers down “If American culture, American poetry begins evening streets, beneath the around here, do we draw a line between the the shadow of a frail plant on a city sill— power of Navajo poetry and the beginning of the net rising soundless as night, the birds’ cries spirit of man.” Frost? Do we make a distinction in time by soundless, until using dates to make those distinctions?” there was no longer dusk, or season, decline, or weather, It is chronology that is the enemy. Chronology only this passage of phantasmal light is acquiring and ascribing things by time, and that not the narrowest shadow dared to sever. it is what causes the conceit of the kind of And men could not see, looking up, what the authority that happens when an empire begins wild geese drew, with an augustine figure like Frost. But what what the ospreys trailed behind them in we have is this sense of destiny, however mod- silvery ropes

17 National Arts Journalism Program that flashed in the icy sunlight; they could for the fields and cities where the birds belong, not hear except it was their seasonal passing, Love, battalions of starlings waging peaceful cries, made seasonless, or, from the high privilege of bearing the net higher, covering this world their birth, like the vines of an orchard, or a mother drawing something brighter than pity for the wingless ones the trembling gauze over the trembling eyes below them who shared dark holes in windows of a child fluttering to sleep; and in houses, it was the light and higher they lifted the net with soundless Opening Address that you will see at evening on the side of a hill voices in yellow October, and no one hearing knew above all change, betrayals of falling suns, what change had brought into the raven’s and this season lasted one moment, like the pause cawing, between dusk and darkness, between fury and the killdeer’s screech, the ember-circling chough peace, such an immense, soundless, and high concern but, for such as our earth is now, it lasted long.

18 Who Owns Culture? What is Cultural Property? An Overview

WHAT IS CULTURAL PROPERTY? First, John Henry Merryman will provide an AN OVERVIEW introductory paper to which each of the pan- elists will respond. MODERATOR: MERRYMAN: Cultural property is a flexi- STEPHEN URICE, Officer, Culture ble and continually expanding category that at Program, The Pew Charitable Trusts its core includes the works of art, artists and artisans, manuscripts, archives and libraries, PANELISTS: antiquities and historical relics. Any human artifact may come to be valued as cultural FRANCO FERRAROTTI, Professor property, from scientific and musical instru- Emeritus, University of Rome ments to perfume bottles and fruit-box labels.

ASHTON HAWKINS, Executive Vice Having said that, I suggest that we can learn President, The Metropolitan Museum of Art more that is interesting and useful about cul- tural property from a description of its history ARIELLE KOZLOFF, Vice President, and its present intellectual milieu than from Ancient Art, The Merrin Gallery pursuit of a definition or an inclusive listing.

JOHN MERRYMAN, Professor Emeritus, Cultural-property questions have attracted Stanford Law School focused attention during three periods of modern history. The first grew out of the KARL MEYER, Journalist, Author, “The French appropriations of art during Plundered Past: The Traffic in Art Treasures” Napoleon’s Italian and low-countries cam- paigns, when the French looted Europe to fill URICE: For those new to the field of cultur- the Musée Napoléon, now the Louvre. al-property policy and law, I imagine your Quatrèmere de Quincy protested the appro- wonder akin to Supreme Court Justice Potter priations in his letter to General Miranda and Stewart when he was asked to define pornog- his ideas were echoed in a little-known intel- raphy. Stewart uttered his famously common- lectual property case decided in Nova Scotia sensical observation that while he could not in 1813. During the same period, poets and define pornography, he knew it when he saw politicians debated the morality and legality of it. So too, virtually all of us know cultural Lord Elgin’s removal of sculptures from the property when we see it. But defining what it Parthenon. This period of attention to cultur- is, determining who, if anyone, should own it, al-property questions came to an inconclusive and setting rules governing how it should conclusion with the partial repatriations move around the world if at all, are issues that imposed on the French at the Congress of elude consensus. Vienna in 1815 and the purchase of the Elgin marbles by the British Parliament in 1816. Answers to those questions are not merely elu- sive but also deeply charged: emotionally, Under what conditions may the authorities of intellectually and rhetorically. Ralph Waldo a nation properly remove cultural property Emerson once observed, “Property is an intel- from another nation or a subjected people? lectual production. The game requires cool- That question continues to arise. The Nazi art ness, right reasoning, promptness, and seizures in World War II and the Soviet reten- patience in the players.” tion, as cultural reparations, of works taken from Germany in 1945, are the most promi-

19 National Arts Journalism Program nent examples. The question is an important tained attention and is the subject of serious, and continually fascinating one, recently often heated debate. brought to a new level of public attention by the work of Hector Feliciano and other Most nations have adopted retentive legislation extraordinary investigative journalists. applicable to broad categories of cultural prop- erty. These employ one or more of three tech- The second period began during the American niques: there are preemption laws, which cre- Civil War. Francis Lieber, a German émigré ate a right in the government and/or in polymath, was the protagonist. His draft of a domestic museums to acquire works offered set of rules to govern the conduct of soldiers for export; embargo laws, which simply pro- in the field after approval by President Lincoln hibit export without prior governmental con- was adopted by Henry Wager Halleck, general sent; and omnibus national ownership laws, What is Cultural Property? An Overview in chief of the Union forces, and published as which declare that major categories of cultural General Orders No. 100. Articles 34 to 36 of property (all pre-Columbian objects, for exam- those general orders deal expressly with cultur- ple) are property of the nation, or the people. “The question al property. Such export controls apply primarily to pri- at the heart of Now generally called the Lieber Code, vately-held cultural property. Many people General Orders No. 100 was widely admired knowingly disobey export control laws, leading the current as a humane document. It was frequently to a substantial flow of illegally exported cul- copied and it became the foundation of the tural objects in international commerce. The ethical and modern international Law of War. The Lieber question at the heart of the current ethical and legal debate is Code is the legal ancestor of the Hague legal debate is whether market nations like the Conventions on the Law of War, and the war United States, Japan and Switzerland should whether crimes trials following World War II. assist source nations such as Greece, Italy and Mexico in enforcing their export controls. market nations The cultural-property questions raised by the Lieber Code and subsequent developments in We are not talking about stolen cultural should assist the Law of War can be summarized in this property, about which there is little legal and way: In the absence of military necessity, does ethical controversy. The theft of cultural source nations a state of war justify the destruction or mis- objects, like other kinds of theft, is universal- treatment of cultural treasures in enemy terri- ly considered wrong. Courts of all nations are in enforcing tory? The basically negative answer to that open to foreign owners seeking to recover question is contained in the reigning interna- stolen cultural objects, and the rules they their export tional legislation, the 1954 Hague apply are settled. controls.” Convention for the Protection of Cultural Property in the Event of Armed Conflict (a The debate, however, is about illegally export- convention to which the U.S. is only now ed cultural property. And the basic legal posi- moving toward ratification). tion was well-stated by Professor Bator: “The fundamental general rule is clear. The fact that Today, we are immersed in a third period of an art object has been illegally exported does focused interest on cultural property, begin- not in itself bar it from lawful importation ning with the end of World War II and the into the United States. Illegal export does not creation of UNESCO (United Nations itself render the importer, or one who took Educational, Scientific and Cultural from her, in any way actionable in a U.S. Organization). For the first time, international court. The possession of an art object cannot trade and cultural property is receiving sus- lawfully be disturbed in the United States

20 Who Owns Culture? What is Cultural Property? An Overview

solely because it was illegally exported from the loss of irreplaceable information. In their another country.” view, museums, collectors, dealers in the rich nations—by providing a market for antiqui- That was the basic principle. That principle ties—are principally responsible for the has been modified by Article 7A of the 1970 destruction. Municipal Convention, by the European Union Council Directive 93-7 of March Archaeologists do not like the antiquities mar- 1993, and by Articles 3 and 5 of the 1995 ket. They do not like commercialization, and UNIDROIT (International Institute for the buying and selling of antiquities, and some of Unification of Private Law) convention. But them are at war with collectors, museums and few of the interested parties are satisfied. And the antiquities trade, whom they accuse of the debate about the free movement of cultur- market-motivated rape, pillage and plunder. al property continues. Archaeologists generally support more rigor- ous source-nation controls over the export of I turn now to the competing ideologies and antiquities, and believe that they should be discourses in that debate. The rhetoric in internationally enforced. The 1970 UNESCO which the various positions are typically convention gives weak support for that posi- expressed reflects and enforces their ideologi- tion, but the 1995 UNIDROIT convention cal sources. Here are the five major voices: strongly supports it.

The first is the source-nation discourse. The Third is the international free-trade discourse. guiding ideology among a large majority of The post-World War II international free- art-rich nations and the international organiza- trade movement that produced the General tion they dominate, UNESCO, combines cul- Agreement on Tariffs and Trade (GATT), the tural nationalism with retentionism. This dis- World Trade Organization, and the Treaty of course emphasizes the relations between Rome seeks the removal of impediments and cultural objects and national history, national barriers to international trade. Free-traders culture and national identity. It employs emo- consider nationally imposed impediments to tive terms like “national cultural heritage” and trade—whether in the form of tariffs or non- “national cultural patrimony,” and prefers to tariff barriers like export controls—to be speak of “protection” rather than “retention” of undesirable. The relevant treaties of GATT cultural property. Cultural objects within the and the Treaty of Rome generally express and national territory, according to this discourse, explicate this ideology, but each of them con- should remain there and, if they stray from it, tains an exception for “national cultural treas- should be returned. Other nations should ures,” a term that remains undefined, either respect and enforce source-nation export con- by litigation or by careful scholarship. trols. The 1970 UNESCO convention sup- ports this ideology and employs its rhetoric. A related discourse is based on freedom of trav- el, which is guaranteed in many post-World Next is the discourse of the archaeologists. War II constitutions and international human The archaeologists’ ideology has, at its source, rights conventions as a basic human right. The a laudable professional concern for the preser- argument is that a person who is not allowed vation of sites and contexts, and an archaeo- to take her cultural property with her when she logical monopoly on excavation, study and goes abroad is effectively denied the freedom provocation. Archaeologists tell us that the to travel. An Italian collector who cannot take unauthorized excavation and removal of her collection with her when she moves to objects from sites destroys context and causes Israel is not really free to move to Israel.

21 National Arts Journalism Program Fourth is the discourse of the acquisitors, the In this century, the clearest such statement term I use to include museums, collectors and occurs in the preamble to the 1954 Hague the art trade. Acquisitors favor the freer inter- Convention, which says: “Damage to cultural national movement of privately held cultural property belonging to any people whatsoever objects and oppose the enforcement of what means damage to the cultural heritage of all they regard as excessive source-nation export mankind, since each people makes its contri- restrictions. At the most pragmatic level, bution to the culture of the world.” Within museums exist to acquire and preserve cultural UNESCO, many of whose members strongly objects for study and display, and without free assert exclusive rights over cultural property movement, there will be fewer opportunities within their jurisdictions, there is a small for acquisition. measure of support for cultural international- What is Cultural Property? An Overview ism that occasionally creeps into non-binding Acquisitors also argue that providing objects provisions of treaties. Thus, the preamble to with market value preserves cultural objects the 1970 UNESCO convention says that the that might otherwise be destroyed or neglect- interchange of cultural property among ed. They say that in an open, legitimate trade, nations increases the knowledge of the civiliza- cultural objects can move to the people and tion of man, enriches the cultural life of all institutions that are most likely to value and peoples, and ensures mutual respect and care for them. Museum collections are built appreciation among nations. on occasional market acquisitions and, often more important, gifts from the collectors, and This conference provides a welcome opportu- the range and quality of major private collec- nity to advance the dialogue about the inter- tions depend on the existence of an interna- national movement of cultural property: a dia- tionally active and experienced art trade. logue that over several decades has been National measures inhibiting the international intermittent, unstructured and only marginal- movement of cultural objects drives the trade ly productive. underground, producing a corruptive and destructive black market. In basic agreement Continuity would improve matters. But it with the international free-trade movement, may be more important to identify two funda- this discourse argues that export control mental impediments to productive discussion. should receive, at most, only selective interna- The first is that participants and symposia tional importance. often do not address the same question, either because the question has been inadequately Acquisitors also argue that art is a good specified, or because they prefer to talk about ambassador. Glenn Lowry, director of the something else. Museum of Modern Art, said: “The more free works of art are to travel, the greater shall be The central question in the current cultural- the cultural awareness of the culture from property debate reduces to this: Should the tra- which they come. Moreover, the more power- ditional international-law rule—that a nation ful and significant the works of art that travel, has no obligation to enforce another nation’s the greater the impact they will have.” restrictions on the export of cultural proper- ty—be changed? That is a carefully crafted and Finally, there is the discourse of the cultural focused question. But any attempt to answer it internationalists, the central premise of which quickly leads to others. For example: Should is that there is an ethically and legally cogniz- all kinds of cultural property be treated as a able international interest in cultural property. “thing,” or do some kinds, such as archaeologi-

22 Who Owns Culture? What is Cultural Property? An Overview

cal sites and objects and artifacts, raise consid- an exclusive right to the enjoyment of it. Since erations not obviously applicable to relocat- the beginning, art has been a community ings? Should it make a difference if the objects enterprise. And “art for art’s sake” is a relative- involved lack any significant cultural and his- ly recent avant-garde invention in order to sat- torical relations to the nation that seeks foreign isfy the bourgeois. Thus, art is actually owned enforcement of its export controls? by those who seem capable to find meaning in it and to enjoy it. Art goes beyond any strictly The central question thus raises a cluster of legal question. additional questions, which are connected by bonds of relevance and materiality, and a It is true, however, contrary to some present- coherent dialogue becomes possible. day trends in advertising (automobiles, toothpaste, etc.), that art should not be used A second difficulty in productive dialogue is out of context. Michelangelo’s “David” has that three of the ideologies I have described its place in the Piazza della Signoria. have been effectively excluded from signifi- Moreover, the holy quality of art is fast devel- cant participation in it. The free-trade dis- oping. The policy of “cultural resources” is course, for one, is simply ignored. Collectors, not only concerned with the dust of the past. including museums that collect, and the art It is a living experience. Art is not only a trade are reviled and ostracized by archaeolo- dead heritage. It is, or it can be, a self-gener- gists, viewed with cold hostility by representa- ating resource. “Art is actually tives of source nations and given slight con- sideration, at best, in the preparation of André Malraux remarked that so vital is the owned by UNESCO statements on the international part played by art museums in our approach those who exchange of cultural property. Cultural inter- to works of art today that we find it difficult nationalism has had only limited success in to realize that no museums exist in lands seem capable engaging the attention of archaeologists and where the civilization is and was unknown. source nations, and its voice within Museums are so much a part of our life that to find UNESCO is muted. Retentive cultural we forget they have, on the spectator, a whole nationalists and archaeologists dominate the new attitude toward the work of art for they meaning in it dialogue, which is conducted on their terms. have tended to estrange the works they bring together from their original functions. Thus, and to enjoy Suppose we agree on two premises. First, that art becomes a decisive instrument toward the all five of the ideologies are legitimate, and construction of mass consciousness and cul- it. Art goes second, that each of the discourses expresses a tural identity. core interest of unchallengeable validity, sur- beyond any rounded by a conundra of more or less debat- This is perhaps why we find art in the primi- strictly legal able implications. If we so agree, the possibili- tive caves and in the Louvre, the Metropolitan ty of an easy—some might say simplistic— Museum or the Hermitage (St. Petersburg). question.” resolution of the cultural property debate van- We know that the need for meaning is at least ishes. The prospect becomes both more com- as urgent as the need for food, and that the plex and more interesting, and the way to a lack of meaning may eventually lead to the productive dialogue opens. destruction of man. Though the artist seems to be so unnecessary in some countries or, FERRAROTTI: John Merryman has con- even in this one, something like a purely aes- vinced me that the question of “who owns art” thetic axis is actually the fundamental water- sounds rhetorical. Art is owned by anybody diviner for any society not yet ready to dry up. who can appreciate it, whomever can pretend Museums, from this point of view, are a form

23 National Arts Journalism Program of self-inflicted mutilation. Of what is the pride perhaps the only way out of the present-day in the eager museum visitor that is all of us? crisis of the circulation of values and the dia- logue among ideas. A recent movement Cultural nationalism is the inevitable offspring known as “cultural differentialism” pretends to of an archaic conception of cultural mission. respect the dignity of each culture provided Far from the notion of a nation as a commu- that no mixture among cultures, no breeding, nity of ideas and lifestyles that one can choose is condoned. Each culture should be given at his will or desire, it’s quite different from respect, but in isolation, separate from other the constitutional covenant that legally binds cultures. French author Pierre-André Taguieff together people from widely different back- has been quite vocal about the right to certain grounds and provides the foundation of a closed cultural worlds. His attitude can easily nation. Cultural nationalism is rooted in be summed up in Henry Kissinger’s phrase, What is Cultural Property? An Overview blood and territory. Its special outcome is when he admitted one day that he did not appetite and ethnic cleansing. know and, moreover, cared nothing to know about the world south of the Pyrenees. This And ethnic cleansing is not only a linguistic supposedly splendid cultural isolationism and metaphor but a tragic day-to-day experience the radical ethnocentrism that goes naturally right now. While one cannot renounce his with it, these things are no longer terrible “More than memory and the artifacts that keep it alive and today, in a world in which we are all migrants, meaningful, one should also be fully aware of and in which works of art and artifacts come ever today, the abuses of memory. From this point of along with us as part of a mobile heritage and view, the circulation of artworks and artifacts spiritual resource. cultures and is a solitary countermeasure. Museums, in this their traditions sense, are not what André Malraux feared they More than ever today, cultures and their tradi- would become, collections of meaningless tions cannot be self-enclosed, lest they risk cannot be fragments of old and vanquished civilizations, impoverishment and extinction. Culture is put together trophies of expression and nothing but historical processes constructed self-enclosed, prowess and predatory spirit. and transported through time, which meet, clash and partly fuse with other cultures and lest they risk A museum without walls is of course an ideal other traditions, thus giving rise to cultural museum. It bears the mark of local social “whole” traditions or half-caste cultures. impoverish- memories. But memories, important as they are, should not be turned into idols. To idolize Historically, there has been a constant flow of ment and the memory tends to blur the fact that identi- information among cultures and a continuous ty and other-ness are in a strange way neces- process of intellectual give-and-take. extinction.” sary to one another. The Greeks knew all too Paradoxically enough, the operation of cultur- well that the first glimpse of their own specific al traditions would be even easier than in the identity came from the existence of the bàr- past, especially with the present-day electroni- baroi, the non-Greek-speaking people. cally-assisted communication. I’m aware, however, that the word “syncretism,” especial- For this reason, works of art, as powerful testi- ly among academics, is not really well monials of the common humanity of human received in many intellectual milieu. beings, should be circulated and shown in all Syncretism is simplistically equated with con- the museums and in the streets, everywhere, fusion, thus the way is paved to an attitude of all over the world. This is not to imply steal- contempt, and to an a priori rejection. It has ing or looting. It is a plea for some kind of already been observed that Hellenism was new, cosmopolitan outlook, which I consider bound to failure not only because of the pre-

24 Who Owns Culture? What is Cultural Property? An Overview

mature death of Alexander, but also the museum, were never properly studied, were intrinsic difficulties. never properly repaired and never properly examined. And only the big stars that were According to Johann Gustav Droysen, just as known from the outset were put out on view. God had separated the light from darkness And this process only increased in the 1950s and divided the peoples of the East from those when Francis Henry Taylor and the trustees of the West, he inspired at the same time in decided that there be a dining room in the them a craving nostalgia and desire for recon- museum to feed the increasing number of peo- ciliation. It seems that the same anguish and ple who came there. As a result, in 1953, the need for unity is at work in each individual great Roman court was turned into a restau- between two contrary and symmetrical poles. rant. This restaurant served a public function, but it also showed a retreat from the display It is hard to see any solution to discrimination and study of the classical world. Not an explic- without a concept of world citizenship assisted it retreat, an implicit one. And our great cura- by a world circulation of the works of art. To tor at the time was continually lobbying to this goal, artistic activity is bound to play a increase the space devoted to classical art. positive goal in terms of shared values and a common destiny. It might be true that man Over the last five years, we have done exactly goes beyond his own legal and perhaps even that. We have spent an enormous amount of artistic production. time and resources taking everything that was in storage, examining it, deciding what was HAWKINS: The Metropolitan Museum has really meritorious for display, study or loan, had an ongoing project for the last five years. devoting enormous resources to conserving it As we examine the legal, moral, and ethical and especially to restoring and redoing the framework of collecting, we must also examine galleries that have traditionally housed it. the realities of it. And one of the great realities is the Metropolitan Museum. We actually have We celebrate the opening of eight new Greek art. We actually study it, repair it, put it on galleries. These galleries span the sixth century display, publish it, learn from it, disseminate B.C. to the second century B.C. Bronze, clay, that knowledge in a broad variety of places, gold, silver, stone and glass are all displayed and seek other people’s opinions. It’s a great next to one another. This is a deliberate university of knowledge on the fine arts. attempt to break down the barriers between specializations, because in many museums, South of the Great Hall, on the main floor of galleries are only connected to one another the Met, is the area committed to the classical because the subject matter in one will be all world as we see it. And for many years, espe- pots, or in another, all sculpture. cially up until the 1930s, the museum devoted a huge amount of space to those collections, I would say that this act of the Met is an enor- which were immeasurably enhanced from mous commitment to culture and to a great 1900 to the beginning of the World War II. collection. The publication, the dissemination Enormous collecting went on, excavations, et of that knowledge, the display of these collec- cetera, and the collections grew very fast; tions, will do an enormous amount to stimu- much faster than anyone could really absorb late knowledge in this field. I think it’s very or deal with. important to know what happens to the reali- ty of art—how it is dealt with. And you may As a result, a great percentage of these objects come to realize that in many nations, incredi- went into storage when they arrived in this bly rich nations in cultural terms, their

25 National Arts Journalism Program resources are not commanded or not used in property itself, and about what is the best way this way for lack of funding and for other rea- for us to join together and preserve it for the sons. This is not a criticism of that. long term. And the long term doesn’t have to do just with, “Who owned it, when?” It has to On the other hand, we at the Met think that do with, “Who’s going to own it 2,000 years there is a great deal to be said in a cultural from now? And what can happen in 2,000 debate about what you do with what you have. years? Is this nation still going to be a nation It’s important to show everyone’s culture in 2,000 years from now? Are any of the empires other contexts. That is part of the argument or countries that were nations 2,000 years ago that Professor Merryman puts forth, the inter- still in existence? How many of them are?” national argument. I know that’s not necessari- ly a popular argument with some segments of The real way to preserve this stuff is stability, What is Cultural Property? An Overview the community, but I think it’s a very impor- and it’s to get the things that we can save into tant one. Our museum is a monument to that. the most stable environment. Museum people are all about that every day, trying to stabilize KOZLOFF: I think the real problem lies with- the environment. And the most stable envi- in a battle of values. I have seen that battle as an ronment is not always under the ground, archaeologist, as a museum curator, as an art because it gets bombed, because there are fer- “The real way dealer now, and it’s frustrating. It’s frustrating tilizers used, because there are dams built. when I see a pot shard that has an absolutely to preserve unique inscription that’s never been published I’m going to speak against conflict. Someone anywhere, never been seen before. It’s intensely else spoke about objects as ambassadors today. this stuff is valuable to me as someone who’s interested in But there are source nations who also consider ancient history in an academic way. their works of art to be ambassadors. stability, and Mohammed Salah, who is the director of the But, I know that a beautiful little cup with an Cairo Museum, visited Sydney, Australia a few it’s to get the owl painted on the front of it is worth money months ago to join the head of a statue from and will bring money on the art market, in the the Cairo museum onto the body of a statue things that we auction house, in the art gallery, in the antiqui- that belongs to the Nicholson Museum in ties gallery. But though the little pot shard with Sydney. And he said, “Egyptian monuments can save into the unique inscription is worth no money, it abroad are ambassadors for the homeland. the most stable has great academic, great historical importance. And as long as they are exhibited in a distin- guished place and are exhibited in a respectful environment.” And this is what so much of the battle is way, we are very happy to have them exhibited about. When we talk about adversarial rela- outside Egypt.” tionships—the flyer inviting all of us to this symposium spoke about the drama and the MEYER: As a designated journalist, I’ll try winners and the losers—my first question to to start off some conflict. While I was myself is, “Oh my God, which side am I on?” impressed by Professor Merryman’s learning, I think on this issue, we live in different worlds. But my next question is, why is this a drama? What he sees as a legal problem, I view as one Why is this a conflict? Why is this an adver- of ethics and behavior. sarial relationship? Let me illustrate by describing the burning of I’d really like us to think about non-conflict. a portrait of Winston Churchill. The portrait I’d like us to think not about drama, not about was painted by a British artist of repute, winners and losers, but about the cultural Graham Sutherland, and was commissioned

26 Who Owns Culture? What is Cultural Property? An Overview

by the British Parliament to be presented to ship of cultural property. Specifically, in the Churchill on the occasion of his 80th birthday case of museums, it seems reasonable for the in 1954. Trying unsuccessfully to suppress his public to expect that: 1) any cultural property feelings, Churchill said to the assembled wor- given for a public purpose should not be treat- thies, “The portrait is a remarkable example of ed as private property by surreptitiously selling modern art. It certainly combines force with or swapping the works of art, in a process candor,” at which a gust of laughter swept known as “deaccessioning,” 2) that the muse- through Westminster Hall. um should not acquire cultural property that it knows to have been stolen or illicitly smug- In fact, Churchill hated the picture, which per- gled from its country of origin, 3) that this haps too directly spoke truth to power. It did also applies to cultural property that was not flatter him, but showed his jowls and his seized before and during World War II by the willful chin. “I think it is malignant,” Churchill Nazi regime, which is a very special case. told his physician, Lord Moran. Two years later, “Museum on her own initiative, Lady Clementine I think most museum ethicists would concur Churchill burnt the picture in secret, explain- in these points, or at least broadly concur. labels and ing to Lord Beaverbrook, the press lord, that it Where I think we might differ is on the catalogs would never see the light of day. In fact, it curiosity, or lack of it, too often shown by became known only after both Churchills had museums about the provenance of cultural should divulge died. (In July 1999, Sutherland’s primary property that museums cover. It does seem to sketch for the portrait went on public view for me that the transparency should not be con- every relevant the first time at Canada House in London, but fined to color slides in the museum shop, but nothing new has come to light about the fate of that museum labels and catalogs should detail about the the full portrait.) divulge every relevant detail about the acquisi- tion of the cultural property to which the acquisition of Doubtless in terms of law, Lady Churchill museum is the steward and not the owner. In committed no crime. But in terms of ethics, it short, this is not just a matter of law but of the cultural was an act of vandalism. The painting, after all, ethical standards that we ought to expect from had a public character. It was presented by a all stewards of cultural property, collectors, property to parliament on an important occasion. Like it dealers, auction houses, as well as museums. which the or not, it was a document and a social artifact as well as a work of art. This seems to me the As an ethical matter, of course, every country museum is the important point: Lady Churchill was not just ought to respect another nation’s laws regard- the owner of the portrait, she was its steward ing the protection of cultural property, just as steward and and its trustee. She had what lawyers term a we expect China, for example, and other “fiduciary relationship” to the painting. countries to respect our laws that protect not the owner.” According to “Webster’s Third New patents, trademarks and copyrights. International Dictionary,” a “fiduciary rela- tionship” is a relation existing “when one per- URICE: There is also something in Karl’s son justifiably reposes confidence, faith and paper that I want to raise. This is a very inter- reliance in another whose aid, advice and pro- esting problem, because it brings us back to tection is sought.” the legal concerns. Lady Churchill committed no crime in a common-law jurisdiction that By my own reading, this means we expect a did not have, at the time, enacted moral rights higher standard of ethical behavior from peo- legislation. Had she done the same thing in ple or institutions to which we have a fiduci- France, however, she certainly would have ary relationship when we give them steward- exposed herself to civil liability, though she

27 National Arts Journalism Program still would not have been exposed to criminal are, from an ethical and legal point of view, liability. Certainly she should be an object of generally thought of as objects of property, ridicule, but in some jurisdictions she actually objects in which there can be a legal interest. would have had legal liability, which brings us If we think of cultural and intellectual proper- back to “What do we do with different legal ty, patents, copyrights, works of culture, systems approaching the very same object Hollywood movies, as also part of cultural from very different perspectives?” property, we may begin to see some of the resentments on the other side. Countries that But before we get into the legal side of things, have no natural resistance to protect their cul- I want to refocus on “What is cultural proper- tures against what they regard as an intrusion, ty?” Derek Walcott, in one of his poems, I think, rightfully regard the United States as implicitly was stating—as the UNESCO con- using a protectionist device that’s contrary to What is Cultural Property? An Overview vention in 1970 states explicitly—that flora the laws that should apply. Yet there should be and fauna are cultural property. By starting a broad reciprocity if we expect them to this conference with a poet, implicitly we are respect trademark laws, so that when you’re in understanding among ourselves that the liter- Mexico City, you do not get counterfeit ary arts are cultural property. The focus of the Vuitton luggage sold to you. We should also panelists today was very much on art. respect their right to decide what is an exportable work of art. And if they say that (Addressing the panelists) Would any of the everything below ground belongs to the peo- panelists comment on a broader definition of ple of Mexico, under the system that we work, cultural property, and how you see a broader then it’s their right to do so. definition perhaps affecting some of your con- clusions? URICE: Certainly trademark and copyright issues are mutually enforceable because of AUDIENCE QUESTION FOR JOHN explicit treaty provisions to that effect. In the MERRYMAN: Given the conclusions that area of cultural-property law, we have been were reached in your presentation and the particularly deficient in trying to reach the panelists responses, which focused primarily kind of consensus that has been reached in on cultural property defined by works of art, such fields as intellectual property. Do you see would your conclusions have differed had we a difference there? In the absence of treaty pro- broadened the definition—for example, as the visions adopted by the nations, what is your UNESCO 1970 convention does—to include foundation for supporting that reciprocity? examples of flora and fauna, literary arts and other forms of cultural property? MEYER: My foundation is what lawyers call equity—that we’re in a position where we MERRYMAN: No. As I tried to indicate, have lots of trademarks, lots of works of art, whatever is valued by people—that is, a cultur- Walt Disney films, but we don’t have antiqui- al artifact—is certainly cultural property, and ties. In China, they have lots of antiquities, that would include literature, certainly. Flora but they don’t have a lot of the things they and fauna is a little more difficult, but to the covet here. That’s the basis for global barter, extent that man has somehow intervened on it, and it would be interesting to recognize their it is definitely a cultural artifact. What we’re rights in return for their recognizing our rights talking about here is the intervention of man. on copyrights and intellectual patents. Objects of whatever kind that represent the human past in some way, or evoke the human KOZLOFF: I think again we’re getting into past, are cultural objects. And cultural objects this adversarial thing—our rights, their rights.

28 Who Owns Culture? What is Cultural Property? An Overview

And when we take the very broadest view of ers, etc. As long as ecology is respected, then I cultural property, we do come up with things think these particular aspects of human expe- that are very easily replaceable, like trade- rience would be essentially respected. But that marks, Coca-Cola, CDs and so on. What con- should not lead to the confusion between nat- cerns me when we make this subject too ural situations, even ecological imperatives, broad, when we say that everything should and works of art as such. stay under the ground, or everything should belong where it is, that there are many things URICE: With the emphasis on preservation that are simply going to be destroyed. And that Arielle has given, we are led away from that worries me. I’m not a proponent of loot- definitions and into values. And one of the ing, but looting is not the other side of the remarkable features of this field is that it has coin. Preservation is the other side of the coin. now been nearly 30 years since the first attempt to place this discussion on cultural But very often, governments are not as interest- property and who owns it and whether it ed in preserving as they are in the ownership should move across international boundaries, rights. As I was once traveling through a coun- into a value-laden format. And that was Paul try that borders the Mediterranean, I came Bator’s 1971 essay in the Stanford Law Review, across an obscure archaeological site I’d been later published as a monograph. searching for, and I found that an oil company had drilled and blasted, and I found a pile of Since that time, the issue of values and a marble chips in the middle of the site. I was value-driven discussion is one that has all but very upset because I thought the company was disappeared. And I believe it is part of the rea- an American firm. I called this American firm son why there has been so very little progress and I asked, “What are you doing blasting on in the last 30 years and why we still find the this site to look for oil?” They said, “Oh, we’re archaeological perspective on one side, and the not allowed to do anything there. That’s a pro- collecting perspective on the other, when it tected site. Only the national oil company has comes to cultural property of an archaeologi- the rights to that site.” cal nature.

So I really don’t believe that strong patrimony (Addressing the panelists) What are the values “We still find laws are the very best way of preserving things, that the panel finds particularly important, and lumping everything together into one pile that could perhaps provide some sort of con- the archaeologi- doesn’t help save the antiquities. sensus? cal perspective FERRAROTTI: I agree. There is a danger of MEYER: First of all, let’s look at the on one side, amplification of a definition that doesn’t American legal position. That position is really define anything at a certain point. Culture only defined through the ratification of the and the collect- means cultivation, cultivation needs fertilizers, UNESCO convention on international move- and yet artifacts, cultural property, and even ment of art. That ratification occurred in ing perspective literary property should be protected. 1972. Between 1972 and 1983, the Senate debated four different versions of an imple- on the other.” In a sense, they are imbued with a special con- menting act. That is to say, when they ratified sciousness. They acquire a collective value for it in 1972, they ratified it with reservations. the community and for other communities They said, “This will not take effect as an potentially, so I do not favor the broadening international treaty until we have implement- of the definition of cultural artifacts and ed it with legislation that will cover all the works of art to the point of considering flow- points that we’re concerned about.”

29 National Arts Journalism Program That led to a 11-year debate and discussion collection in Cleveland, and I believe that within the archaeological/collecting/academic most curators do that. In fact, looting is not community. Finally, in 1983, the implement- the big issue in antiquities. It’s the biggest ing act was passed. It’s worth noting that it story because there’s a lot of conflict. was a compromise. All concerned groups were consulted, to some degree: the collecting com- The biggest problem in an antiquities depart- munity, the archaeological community, the ment in a museum is forgeries. Most muse- academic community, museum community, ums really do try to display as many of their dealer community, all of the communities that works of art as they possibly can. They try to have a very ongoing and important commit- research them. If there’s a problem with their ment to works of art and their preservation. past ownership, that has to come to the fore. Museums lend things to other institutions, to What is Cultural Property? An Overview This implementing legislation is in effect. It exhibitions, and so forth. The number of has not been a huge success. A lot of nations problems that have occurred over the years— tend to bypass it. But it does have the merit of and there have been some—have been very, best defining the national consensus on what very few. And it’s that it’s such a great story of “Provenances is important, and acknowledging that there the winner versus the loser that makes it so have to be tradeoffs. For example, to get access flagrant, I guess. can be forged, to this treaty, if you’re a nation applying for a bilateral agreement, you have to be able to FERRAROTTI: This view is not really popu- too.” demonstrate certain things. You have to lar, but it so happens that in certain areas demonstrate that you are taking steps within north of Rome, in the Etruscan area, the activ- your own country to protect your cultural pat- ity of what I would have to call “pure and sim- rimony. You have to take steps to show that ple thieves” in the Etruscan tombs, strangely you’re seeking international agreement, that enough, has been at times very positive. They it’s not just the U.S. you’re asking, that you’re were responsible for great findings. Somehow, asking other people in the area for help. they were filling up the gaps left by profes- sional archaeologists. These are threshold questions that were thought important before the U.S. would URICE [addressed to Kozloff]: You come then grant a bilateral treaty. I think it’s worth from the background of a Greco-Roman pointing out that the UNIDROIT convention department. Indeed, looting is the problem, mentioned in your remarks, John, has not particularly in pre-Columbian materials and been adopted by the United States and has in new-world materials and in many other parts fact not been adopted by any Western nation of the world. Do we here have a potential that I know of except possibly France. distinction between different kinds of cultur- al property, geographically limited? Do you AUDIENCE QUESTION: The Association think an equivalent curator in pre- of Art Museum Directors recently instructed Columbian would be able to say looting is all its member museums to examine their col- not the problem? lections and identify and possibly return art that was looted by the Nazis. Although these KOZLOFF: I don’t know if a curator in pre- cases are very different, should the same type Columbian would say that. I do think that of self-examination occur with antiquities? equivalent curators in almost any field would say that the biggest culprit to the destruction KOZLOFF: We’ve worked very hard to find of archaeological sites is simply human out the background of works of art in our progress. And it is the fact that the popula-

30 Who Owns Culture? What is Cultural Property? An Overview

tion is exploding all over the world; we need sculpture of such power and beauty (no one new houses, we need new roads, we need sub- had ever seen anything in Etruscan art that ways, we need shopping centers (or maybe we was more than three inches high, with a few don’t need them, we think we need them), exceptions), that they plunged right ahead. hotels are built, apartment houses are built, And the forger kept one of the fingers and was and so on. One of the greatest finds that later able to demonstrate how it fit on the occurred in Alexandria, Egypt was when a hand. But there were grave doubts about the hospital was built. piece almost immediately. The Met just made a huge, blind mistake. So yes, there is looting. There is looting in South America, Central America, there’s loot- KOZLOFF: Concommitant to what you’re ing in any archaeologically rich area. But that saying is that if there is so much looting going is not the biggest problem. It’s the creep and on, and there are so many real antiquities com- crawl of civilization, or the explosion of civi- ing out of source nations, why is it that there lization, if you will, especially in this century. are so many forgeries? And there just aren’t so many things coming out of source nations. AUDIENCE QUESTION: Don’t you think there’s a relationship between looting and for- URICE: I think I would disagree with that gery: that is, particularly in the 1920s when and say that forgeries are kind of the venereal curators were so eager to acquire things that disorder of the international art market. they did not presume to ask questions about They’re punishment for excessive desire, and provenance, where things came from? They the problem of the lack of curiosity of a prove- encouraged forgeries. I’m particulary thinking nance is crucial to the willingness of museums of the Metropolitan. . .that one wonderful to accept Etruscan masterpieces. I wonder Etruscan piece that is no longer on exhibit. why the Metropolitan Museum does not put some of these forgery masterpieces on display HAWKINS: I think you have an interesting so that we can see them at least as an object point. The history of the acquisition of that lesson of mistakes past. piece, was that it was acquired in the 1920s. They were so flabbergasted by this gigantic MERRYMAN: Provenances can be forged, too.

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