history and objects..."81 These ideas changed the perception of
group and cultural identity by calling on nations to reexamine the relations that existed
between the North and the South. The result was the enactment of the 1970 UNESCO
Convention governing the import, export, and transfer of cultural property. It
provided for the return of stolen cultural artifacts to their rightful owners or places of
origin. The Convention benefits "source nations" (third-world nations possessing
cultural objects) in that stolen objects that end up in Western markets are repatriated.
It has definitely exemplified the shifting trend in state behavior that recognizes the
rights of all nations to possess objects of their heritage.
Yet, repatriation has not been widespread, to say the least. Museums of many
European cities are still crowded with cultural objects expropriated from former colonies.
It does not seem likely that these objects will be returned since tourism is a
prominent industry generating millions in proceeds. Even when the issue involves another
European country, repatriation does not usually occur as in the case of the Elgin Marbles.
Lord Elgin, a British diplomat removed marble decorations from the Parthenon in Athens and
eventually sold them to the British Museum. After countless pleas for repatriation
by Greece, they remain on display at the museum. Similarly, French law prohibits the
export of any cultural object older than 75 years old from French territory without a
permit granted by a supervisory commission. These objects do not in any way have to
represent French heritage.
Admittedly, there are problems with the laws governing both protection and repatriation.
In times of war, armies look for strategic importance of a target, not its cultural
significance. Soldiers plunder and sell their loot for a profit. Scavengers continue
to raid archaeological sites throughout the "third world" and sell their spoils
on illegitimate markets. On its face, any critic of cultural property legislation
can look at the inefficacy of such laws. Such critics also denounce all
international law as inefficient since there is no overarching authority to enforce it.
They claim that in spite of the law, states continue to transgress. To them
the author says, despite the law, people continue to steal and kill. The important
thing to get out of this analysis is not how inadequate the international regime is in
addressing cultural property protection or repatriation or that states act only out of
their interests in devising cultural property legislation. Rather, the point is to
witness progress and the development of benign rules and institutions instilling a higher
purpose in international politics.
This paper presented several arguments on the issue of why the change in state practice
occurred and laws were devised. Notwithstanding, the author argues that the Enlightenment
ideology of universalism influenced states to protect cultural property. The emergence of
the common heritage of mankind doctrine fostered in states a sense of respect for objects
of cultural significance, regardless of their origin. They entered into agreements
to protect these objects for future generations. Although national identity and
state interests played a part in the decision, the common heritage doctrine presented
states with a
purpose in their actions. The Kantian federation and the Hegelian universal
community are behind the emergence of the body of international law that calls on states
to look beyond their interests, and to a higher good. It is important to not only look at
the faults, but also to the intended goals of such legislation. In most cases, the
goals tend to be positive and humanitarianquite a change from Richelieu's Europe and
Machiavellian ethics. This shows progress on the part of the international
1Hugo Grotius, De
Iure Paedae Commentarius (Commentary on the Law of Prize and Booty), Volume I, a
Translation of the Original Manuscript of 1604 by Gwaldys L. Williams (Oxford: Clarendon
Press, 1950) 43.
expropriation differs from isolate expropriation, a practice that refers to operations by
scavenger thieves who steal property for personal gain.
Treue, Art Plunder: The Fate of Works of Art in War and Unrest
(New York: The John
Day Company, 1961) 13.
G. W. F.
Hegel, Philosophy of Right,
trans. T. M. Knox (Oxford: Clarendon, 1942) par. 324.
Hughes, Continuity and Change in World Politics
(Englewood Cliffs: Prentice Hall,
Sandholtz, "Rules, Reasons and International Institutions," (International
Studies Association, San Diego, April 1996) 21.
Sureda, The Evolution of the Right of Self-Determination: A Study of United Nations
(Leiden: A.W. Sijthoff, 1973) 17.
Mazzini, "The Duties of Man," in The Nationalism Reader,
ed. Omar Dahbour
and Micheline R. Ishay (New Jersey: Humanities Press International, 1995) 95.
Moustakas, "Group Rights in Cultural Property: Justifying Strict
Inalienability," Cornell Law Review
74:6 (1989): 1185.
Berns, "Thomas Hobbes," in History of