An introduction to art and cultural heritage law -- I. Artists' rights -- Freedom of expression -- Copyright -- Moral rights doctrine -- II. Museums, merchants, and markets -- Museums -- Art merchants : auction houses and dealers -- Questions of quality and authenticity -- Recovery and Bars to Recovery of Stolen Art and Cultural Property -- III. Cultural heritage -- Cultural heritage in time of war and in the aftermath of war -- Cultural heritage in the international context -- Cultural heritage of the United States -- Indigenous cultural heritage -- Appendix : Conventions and legislation -- Section A. International and Regional Conventions.
Abstract:Provenance, the ownership history of an artifact or work of art, has become one of the primary mechanisms for determining the legal status and authenticity of a cultural object. Professional associations, including museum organizations, have adopted the "1970 standard" as a means to prevent the acquisition of an ancient object from promoting the looting of archaeological sites, which is driven by the economic gains realized through the international market. The Association of Art Museum Directors (AAMD), one of the museum world's most influential professional organizations, requires its members to list the ancient artworks and artifacts that they have acquired after 2008 that do not conform to the 1970 standard in an online object registry. The study presented here of the AAMD's Object Registry for New Acquisitions of Archaeological Material and Works of Ancient Art analyzes the extent to which AAMD member museums do not comply with the 1970 standard and, perhaps of greater significance, the weaknesses in the provenance information on which they rely in acquiring such works. I argue that systematic recurrences of inadequate provenance certitude are symptomatic of the larger problem of methodology and standards of evidence in claiming documented provenance. A museum's acceptance of possibly unverifiable provenance documentation and, therefore, its acquisition of an object that may have been recently looted, in turn, impose a negative externality on society through the loss of information about our past caused by the looting of archaeological sites.
The destruction of cultural heritage has played a prominent role in the ongoing conflicts in Syria and Iraq and in the recent conflict in Mali. This destruction has displayed the failure of international law to effectively deter these actions. This article reviews existing international law in light of this destruction and the challenges posed by the issues of non-international armed conflict, non-state actors and the military necessity exception. By examining recent developments in applicable international law, the article proposes that customary international law has evolved to interpret existing legal instruments and doctrines concerning cultural heritage in light of the principles of proportionality and distinction and a definition of intentionality that includes extreme negligence and willful disregard. As a result, international law may more effectively foster the preservation of cultural heritage for future generations.
The destruction of cultural heritage has played a prominent role in the ongoing conflicts in Syria and Iraq and in the recent conflict in Mali. This destruction has displayed the failure of international law to effectively deter these actions. This article reviews existing international law in light of this destruction and the challenges posed by the issues of non-international armed conflict, non-state actors and the military necessity exception. By examining recent developments in applicable international law, the article proposes that customary international law has evolved to interpret existing legal instruments and doctrines concerning cultural heritage in light of the principles of proportionality and distinction and a definition of intentionality that includes extreme negligence and willful disregard. As a result, international law may more effectively foster the preservation of cultural heritage for future generations.
Abstract:This article reviews the shift in cultural property litigation in the United States over the past twenty-five years from private replevin actions, in which the original owner sues the current possessor and must bear the costs as well as overcome procedural and logistical obstacles, in particular the statutes of limitation, to civil forfeiture actions instituted by the U.S. government to obtain restitution. The article then analyzes recent cases that arguably illustrate over-enforcement of the law through the use of unclear legal standards in civil forfeiture. It then turns to shortcomings in the effectiveness of U.S. law, in particular the difficulty in imposing emergency import restrictions in the cases of Iraq and Syria, and an over-emphasis on the use of civil forfeiture, which has largely replaced criminal prosecutions in the cultural property arena—but without which there is no true deterrent to trafficking in illegal cultural objects.
