Student Comment on the 1970 UNESCO Convention

Janene Marie Podesta has written an article in the Cardozo Journal of International and Comparative Law, SAVING CULTURE, BUT PASSING THE BUCK: HOW THE 1970 UNESCO CONVENTION UNDERMINES ITS GOALS BY UNDULY TARGETING MARKET NATIONS. I haven’t found a free copy available on the net, so you’ll have to rely on the usual scholarly databases if you’re keen to get your hands on a copy.

I continue to be surprised at the tremendous popularity of this topic, particularly the frequency with which cultural heritage issues are used as Note and Comment topics for law students. I think this is a good thing, though unfortunately they tend to rely a bit too much on the same staple of core topics and concepts.

From the Introduction:

This Note argues that UNESCO’s current policy, which makes a minority number of market nations almost universally responsible for the protection of source nations’ cultural property, is contrary to the international public good and cannot succeed in its current form. While well intentioned, placing all responsibility on the receivers of illicit goods will not curb the flow of these goods; it will only send the market further underground. It may also result in criminal prosecution for those who were simply ignorant rather than those who purposefully decimated their own countries’ heritage. UNESCO requires almost nothing from some nations (generally, those who gain the most from the system) and burdens others with disproportionate accountability.

Part II of this Note will focus on the various international conventions on the subject of cultural property, predominately the 1970 UNESCO Convention. It will look at the context in which the 1970 UNESCO Convention was convened, the conflicting theories on the concept of “cultural property” underlying the drafting, and the resulting bias against internationalist nations within the 1970 UNESCO Convention. These factors make the system ultimately unsustainable.

Part III traces the development of the current situation by exploring the various interpretations countries have had of the UNESCO decree to “carry out the necessary concrete measures” to protect the state’s own “cultural patrimony.” It will focus on the three main types of ownership laws that have been enacted by various countries, and will also reflect on the success that each such method has shown.

Part IV will, conversely, look at those steps taken by market countries, particularly the United States, to “prevent museums and similar institutions . . .from acquiring cultural property,” and “to recover and return” any such property. This part will highlight not only laws specifically enacted in reaction to UNESCO, but also laws that have substituted for such laws in cases of cultural property “theft.” It will then analyze the effects that various rulings have had on the cultural patrimony arena, and forecast the dangers likely to result from such holdings.

Part V suggests alternate possibilities that would more evenly balance the responsibility between those nations that wish to protect their own cultural heritage, and those that wish to help in this quest without sacrificing their own belief systems and citizens’ rights.