Joseph Fishman on Intranational Cultural Disputes

Joseph Fishman, Clerk for the U.S. Court of Appeals for the First Circuit has posted Locating the International Interest in Intranational Cultural Property Disputes Yale Journal of International Law, Vol. 35, No. 2, 2010.

This Article considers the extent to which there may be an international interest in how intranational disputes over cultural property are settled. Drawing on the norms underlying recent global scrutiny of states’ destruction of cultural objects located within their own territory, I identify two factors that may justify internationalizing otherwise domestic conflicts over cultural property: discriminatory intent and harm to cultural diversity. I argue that where neither of these concerns is implicated, the international community should pursue a policy of non-intervention, both because local authorities are likely to be more competent adjudicators and because eliciting a global referendum on cultural identity risks sapping that identity of its fluidity. At the same time, maintaining neutrality is inappropriate when one claimant’s asserted right would actually undermine this legal regime’s multiculturalist goals. The claim of group ownership over a cultural object acquired through persecution of minority communities abuses a property right whose ostensible rationale is promotion of cultural diversity. This frustration of purpose ought to give the international community a significantly higher interest in ensuring that a claim does not untether the property right from the theory that justifies it. The Article concludes by calling for recognition of cultural property rights as a purposive legal scheme that is susceptible to exploitation, in domestic and international arenas alike.

It is a very interesting piece, Fishman uses as an example, the St. Ninian’s Isle Treasure in the United Kingdom.  Highly Recommended.

Questions or Comments? Email me at derek.fincham@gmail.com

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