Introduction

Hugo Grotius, writing in the early 17th century, held that "the essential characteristic of just wars consists above all in the fact that the things captured in such wars become the property of the captors."1  In fact, the German word for war, krieg, is defined as "exertion," an endeavor to obtain something. Similarly, the Greek word for Mars is derived from Ares, meaning "to take away" or "seize." Embracing this definition, municipalities, states, and empires engaged in the thievery of art objects during war.  For the most part, the looting of cultural objects was not an individual act committed by a soldier who stood to profit from stealing an object of value. Rather, the looting of art objects was sanctioned by the rulers of the entity engaged in war, a practice that will be called "institutional expropriation."2 Institutional expropriation refers to state mandated operations of mechanically looting the cultural property belonging to another nation during war; it also applies to sanctioned explorations and journeys by imperialist countries to seize artifacts from their colonies.  The capture of cultural property not only served a profit-related whim; albeit stolen objects, many containing priceless gems and generous amounts of gold, had tremendous value within themselves.  Primarily, however, looted cultural objects were considered "trophies of war," commonly displayed in the museums of the victors.  It is commonly believed that the Romans originated "the idea of the triumph as the rape of the works of art in which a nation gloried, and their display in the triumphal procession upon the conqueror's return to Rome."3  Art capture came within the framework of Roman expansion throughout the history of the empire and specifically in the following conquests: Veii, Praeneste (380 BC), Volsinii (264 BC) with a booty of 2,000 statutes, the wholesale pillaging of Syracuse (212 BC), Tarentum (209 BC), L. Mummius, and Cauis Verres.4

Cultural objects, which here will be often referred to as cultural property, include a vast array of artifacts such as paintings, monuments, sculptures, statues, rare manuscripts, items found in archaeological sites, antiquities, and various other articles.   Taking of such property by a conquering state has been seen as just and within the scope of the law of war.  [Grotius views war as an extension of God's Will, namely those wars waged in defense of self and property, to prosecute injuries, and to inflict deserved punishment.5]  He also maintains that the seizure of booty is agreeable with the Divine Will.6  Less than 250 years after Grotius defended the "justness" of seizing prize and booty, European leaders embraced a set of laws that prohibited states from plundering cultural objects in times of war.   The 19th century saw the condemnation of states engaging in the looting and plunder of cultural property as well as the development of a body of international law prohibiting such actions.  Historians have documented the first laws of cultural property protection and

 

instances of repatriation of cultural artifacts.   Yet, no one has addressed the reason for the emergence of such laws and the explanation for the change in the norm.

This paper will provide three explanations for the emergence of laws prohibiting the plunder of cultural property during war as well as the change in state practice.  The first factor for which the change in state behavior can be attributed to is the emergence of the "common heritage of humankind" doctrine.  Enlighten-ment philosophers opined that a sense of universality exists throughout human culture that is guided by reason and virtue.  Since states, as G.W.F. Hegel thought, represent the synthesis of the polis, they will act accordingly­with virtue and respect to other such entities.  As such, states ideally recognize the rights of other states to exist and will abstain from plundering the possessions of those states.  While for Grotius, Machiavelli, Hobbes, and other Realist thinkers, the purpose of war was to inflict punishment and retribution, Hegel viewed war as an instrument of universal spirit.7 Thinkers like Montesquieu, Rousseau, Locke, Kant, and Voltaire saw "in the rationality of humans the basis for progress, human perfectibility, and the discovery of universal social and political principles."8  These principles developed the formation of individual civil and political rights­rights which were later "enshrined in national constitutions in strikingly similar forms."9   The development of these universal, liberal principles led to the idea that cultural objects belong to humanity, and that destruction of such objects would prevent future generations from enjoying the beauty of these works.

The second factor that would explain the emergence of laws prohibiting plunder and seizure of cultural objects is actually an ideology that is in opposition to liberal universalism.   The national self-determination doctrine emerged with the French Revolution, manifesting the virtue of the democratic ideal for all mankind in the challenge against the tyranny of the "ancient regime": "government should be based on the will of the people, not that of the monarch, and people not content with the government of the country to which they belong should be able to sucede [sic] and organise themselves as they wish."10 The 19th century witnessed the development of the self-determination doctrine and the strengthening of nationalistic pride throughout Europe. During that period, Polish, Italian, Magyar, and German people claimed self-determination. Giuseppe Mazzini's passion for Italian freedom and unity exemplified the nationalist fury of that time:

In labouring according to true principles for our Country we are labouring for Humanity; our Country is the fulcrum of the lever which we have to wield for the common good. If we give

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Alexander Frid - The Common Heritage Doctrine and... [1] [2] [3] [4] [5] [6] [7] [8] [9] [10]