Art and Cultural Property Law

Prof. Anastasia Grammaticaki-Alexiou Art and Cultural Property Law Cases and Materials Loyola Law School Summer Program Spetses 2019 1 A. General Introduction Art law is a highly specialized legal field. It is an interdisciplinary area, including all aspects of the law connected with art and cultural objects in general. At present art trade, licit or illicit, as well as the protection and preservation of valuable goods, has become international for its most part, the knowledge of at least the basics in international law and conflict of laws is essential. The relevant issues are numerous and in a short course it is impossible to cover all of them in a detailed manner. The present course will cover only visual arts. The issues presented are really the highlights, which can provide to the interested lawyer the platform to build a more thorough knowledge of this area of the law later. Definitions The meaning of the term “cultural good” is neither self-understood, nor identical among the various jurisdictions. Its definition is a very difficult task, usually unsuccessful, especially since the concept to be defined includes vague notions, such as “culture” or “art”. Culture in itself is a complex and constantly developing concept, depending on various factors. Its content is hard to determine. Equally difficult, therefore, is the definition of “cultural goods”, since it must take into account the complex character of the cultural element of an object. What we usually call “cultural goods” are diverse objects, movable or immovable, humble or important, used for various purposes, made of worthless or valuable materials, elaborate or not artistic at all. They acquire the quality of “cultural” with the aid of sociology, art history, anthropology, aesthetics, history etc. If each group of people, each country, or grater geographical area understands –as it does- culture in a different manner, the meaning of “cultural good” is bound to differ accordingly. What is extremely significant for a country may be valueless for another. The Stone of Scone, for example, an oblong block of red sandstone, used for centuries in the coronation of the monarchs of Scotland and later the monarchs of England, Great Britain, and the United Kingdom, is precious for the Scots, has been 2 the object of a treaty in 1328 between the Kingdom of Scotland and the Kingdom of England, but if it was found in another area of the world and if its history was unknown, it would be treated as a cheap building block. Every discussion on culture and its derivatives usually finds, at the very start, this difficulty concerning definitions: What is the meaning of culture and what is the meaning of cultural heritage? It is exactly the vastness of the world cultural wealth and its variety of forms that makes definitions difficult and inadequate. The relevant discussion is interlined with philosophical, social, historical, aesthetic, anthropological, political and other parameters, takes time and its conclusions are hardly ever generally accepted. Most of the time an attempt of defining cultural heritage is a description complemented with a list of objects. We may say that it is the legacy of physical artefacts and intangible attributes of a group or society, which are inherited from past generations, maintained in the present and bestowed for the benefit of future generations. We remember a people long gone by the cultural remains they leave behind: Egyptian writing and temples, Greek and Roman sculpture, Mesoamerican ballgame courts, Cambodian temples, Etruscan tombs, and ancient African masks and drums. These expressions of human creativity and achievement are celebrated as the highest accomplishments of human work, and we attribute an ever-increasing monetary value to objects of art and antiquity. Quite often what one generation considers cultural heritage may be rejected by the next generation, and is revived by a succeeding generation. Physical or "tangible" cultural heritage includes buildings, monuments, or historic places, artefacts, etc. that are considered worthy of preservation for the future. Objects significant to archaeology, architecture, prehistory, history, religion, science or technology of a specific culture are included in it. Heritage can also include cultural landscapes (natural features that may have cultural attributes), such as a cave or even a tree! Tangible cultural property comprises movables (e.g. the Koh-I-Noor diamond decorating the English crown of Queen mother Elizabeth, or the Bell of Freedom) and immovables (such as the Acropolis in Athens, the Pyramids in Egypt, or the Coliseum in Rome). Intangible cultural property includes social values and traditions, customs, and practices, aesthetic and spiritual beliefs, artistic expression, language and other aspects of human activity. Intangible cultural heritage is usually more difficult to preserve than physical objects, as it is not always possible to “encase” it in a physical manner 3 The concept of “cultural good” varies in time as well. Much depends on the time it has been produced and the prevailing idea of culture at the time when it is evaluated. Sometimes an object that was meant for everyday use, without anything artistic on it, may later be considered an important cultural good, because it represents a certain era in the history of mankind. The legislator does not define something in abstracto; he has certain purposes to serve. For example, a wide definition of cultural goods chosen by a country’s legal system means that a greater number of cultural objects of that country are protected. There are several ways to define cultural goods. One is the enumeration of categories (e.g. religious, historic, ethnographic etc. objects). Another is listing certain objects, a method which may leave out whatever for any reason has not been listed. A third method, quite often used, is the combination of the said methods. Often the term “cultural good” is confused with the term “cultural heritage”. However the latter designates an array of objects of great significance, which must be safeguarded with extra care on behalf of future generations. And it should be added that there exists the concept of cultural heritage of a nation and that of cultural heritage of mankind. In many cases the former is also part of the latter. Art is a problematic concept as well, considering its various forms all over the world and the ideas it represents through time. Many of the modern art pieces would probably be totally discarded by art specialists in the past. An antique brass lamp may not be high art according to present day criteria, but it may have been an artistic and technical achievement in its time. Cultural nationalism and cultural internationalism A basic issue related to cultural goods is the question “who they belong to”. This issue is of great importance, because a huge number of tangible cultural goods originating from art-rich countries are found in museums and collections all over the world, far from their countries of origin, either because of historical and political reasons or due to illicit trade. It is true that the discussion on the ownership of cultural items supplants the dominant cultural element and may reduce such items to the level of ordinary goods that may be owned, bought or sold freely. For this reason I would personally prefer to use the term “possession”. For many of those representing countries which receive cultural goods in their territory, museums and collectors, the 4 issue of responsibility for such goods and their repatriation is set on a pure property basis, and the connection of cultural goods with human rights is considered a mere sentimentality. Countries where cultural goods are created or found naturally wish to own and keep them. Two theories have been advanced as regards such a claim: a) cultural internationalism and, b) cultural nationalism. According to cultural internationalism objects with artistic, archaeological, ethnological or historical value constitute elements of the common human civilization, regardless their country of origin, their present location, or ownership rights of a country. The cultural achievements of a people are the product of global interaction and the heritage of future generations all over the world. In other words cultural internationalism sees cultural goods as assets of humanity. Cultural internationalism attributes more importance to the ability of a country to safe keep cultural goods than to its affinity with them, as long as all people are offered the opportunity to see and enjoy them. Consequently it seems logical that Greece should not request the return of the Parthenon Sculptures from the British Museum, since they are protected and millions of visitors can visit them every year. However the real aim of this theory is the rebuff of restitution claims by the countries of origin of cultural objects. It serves fine the importing countries and does not do justice the exporting countries; this is the reason why it is supported by the former. The canvass of most arguments supporting cultural internationalism is actually the veil covering the endeavors of museums and countries, usually wealthy, which possess cultural treasures that other countries claim as belonging to their cultural heritage, to keep those treasures in their possession. The principle of preservation has furthermore led to the idea of their being part of a world cultural heritage that has to be taken good care of. The capstone of that idea is that rich, hoarding countries, are the ones that can offer such care for the benefit of humanity and thus should keep the objects. According to cultural nationalism cultural artifacts should belong to a country or a group because of the relationship between them and the cultural identity of the country or group. The supporters of cultural nationalism do not focus on the ability of a country to safeguard and preserve more effectively the cultural objects.

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