up this fulcrum we run the risk of becoming useless to our Country and to Humanity. Before associating ourselves with the Nations which compose Humanity we must exist as a Nation.  There can be no association except among equals; and you have no recognized collective existence.11

Cultural objects symbolize a sense of historical greatness of a nation or a people. In the words of John Henry Merryman, they "speak directly to the inner consciousness within which we resolve whether we do really feel a sense of belonging to a group or community."12  They revive a feeling of pasthood that cultures embrace and nationalist leaders glorify.   Perhaps, this propinquity between a cultural object and a group prompted newly formed 19th century nations to adopt laws that prohibit looting of cultural property and mandate its repatriation.

Finally, the third approach assumes a conflict perspective in explaining the change in the norm as well as law governing the treatment of cultural property. The argument here suggests that in the 19th and early 20th centuries, it was in the best interests of states to devise laws that prohibit the looting of cultural objects during times of war.  With the relative balance of power in Europe at that time, states stood to gain from laws that protected their cultural treasures from foreign invasion.  Besides, the alliance structure prevented hegemonic military dominance by any one state, thus prompting states to realize that each would benefit from such protections.  At the same time, as laws were devised protecting European cultural artifacts, imperial states continued looting expeditions in their colonies.

History and Practice

Grotius condoned, even advocated, the seizure of cultural objects in times of war.  He was not the first one, since expropriation of valuable objects was the norm for centuries before.  Aristotle once wrote: "[f]or this law is a species of common agreement under which things captured in war are said to be the property of the captors."13 Similarly, Plato makes the following statement: "all those goods which were the property of the vanquished, become the property of the victor."14  Seizure of objects became a tradition as victorious armies returned back to their homelands with acquired possessions of the defeated enemies.  Such was the case in Rome. After a long procession through the streets of Rome, officers would present the loot of cultural treasures to the emperor.  These objects would then take their place in the Roman palaces, glorifying the empire and its triumphs.  In fact, under Roman Corpus Juris, it was stated that things captured in war become the property of the captors; the same principle was affirmed by canon law.15

In the 16th and 17th centuries, an abundance

of discourse emerged describing the state of human nature. In the Leviathan, Thomas Hobbes argued that man's primary goal is self-preservation, and that virtue is only the habit of doing what tends to our own self-preservation.16  He wrote: "in the first place, I put for a general inclination of all mankind, a perpetual and restless desire of power after power, that ceaseth only in death."17  The state was considered an extension of these human motives. Theorists argued that these human inclinations for self-interest and power were the guiding principles for governments in a "zero-sum" world.  As Nicolo Machiavelli argued, "[a prince is] oftentimes necessitated, for the preservation of his State, to do things inhuman, uncharitable, and irregular."18

These elements were at the foundation of the state system, formed with the signing of the Peace of Westphalia in 1648.  The emerging Westphalian system rested on two governing pillars of state relations: national sovereignty and independence.19 The Peace of Westphalia essentially solidified the shifting trend away from city-state governments to a system of sovereign, independent states.  Westphalia reduced the power of the pope and the emperor to the status of territorial princes.20   Authority became centralized, falling in the hands of the regional princes. The domestic centralization "helped to institute anarchy as the ruling principle of international relations."21 The formulation of the Westphalian syste m essentially fostered war between states as it "was a constant invitation to military expansion by the strongest powers and in this sense a constant incentive to follow the dictates of the military-political world."22  Rosecrance argued that "unless new territory was taken, kings and parliamentary leaders might become vulnerable to a major foe."23 Thus, state leaders, supported by domestic politics, chose to engage in military expansion.

Before the ink could dry on the Westphalian treaty, the European nobility asserted its intentions of military conquest and territorial acquisition.   Consequently, the end of the Thirty Years War coincided with the rise of France as a major military power.  France's Louis XIV set the standard for his royal peers after the Peace of the Westphalia, a standard that advocates "the pursuit of power and glory through military conquest."24

After the end of the Thirty Years War, the concept of raison d'etat evolved as the guiding principle of European diplomacy. Even before the war ended, however, this doctrine was widely promulgated by the leaders of European warring entities.  One such ruler was Cardinal de Richelieu, the First Minister of France from 1624 to 1642. Although he never saw the war's end, French post-war dominance could not be envisioned without his successes­certainly attributed to his strategy and ideology. Under his rule, the doctrine of

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