Student Note – Illicit Cultural Property

Student note on Confederate Monuments in North Carolina

‘”The monument was erected in honor of the 321 men from Alexander County who lost their lives in the Civil War. It is a single granite block 7 feet tall, 4 feet wide, and 8 inches thick with two small circles above the front inscription containing pairs of crossed confederate battle flags.”
Image courtesy of Commemorative landscapes of N. Carolina.

Kasi E. Wahlers has published an interesting student article in the North Carolina Law Review titled “North Carolina’s Heritage Protection Act: Cementing Confederate Monuments in North Carolina’s Landscape”. It takes up North Carolina’s handling of remnants of public monuments aimed at remembering and commemorating some ugly aspects of its past.

From the Abstract:

Even in 2015, the North Carolina landscape is densely populated with Confederate monuments, appearing in more than half of the state’s one hundred counties. The state has more monuments honoring the Civil War than any other event, with five Civil War monuments for every World War II monument. Most of these structures were erected between 1890 and 1930 and many are located on public property, commonly found in and around courthouses, town squares, graveyards, and University campuses. In July of 2015, North Carolina enacted the Heritage Protection Act (“HPA”). This law severely restricts the removal, relocation, or alteration of any monument located on public property. While neutral on its face, North Carolina’s Heritage Protection Act was enacted for the purpose of protecting Confederate monuments.

This Recent Development argues that the North Carolina Heritage Protection Act creates a lack of accountability on behalf of the N.C. General Assembly, usurps powers of local governments, and is amorphously vague as to what objects it applies to. Clarification of the statutory language by the General Assembly as well as a provision allowing for the erection of plaques that contextualize these monuments within local history is needed. Analysis proceeds in three parts. Part I of this Recent Development briefly sketches the propagation of Heritage Protection Acts across the South, outlines the North Carolina Heritage Protection Act, and highlights ways the North Carolina statute differs from other states. Part II discusses the confusing nature of this statute and analyzes legislative history to offer insight as to: (1) what role the North Carolina Historical Commission plays, if any, in deciding to permanently remove or relocate monuments; (2) whether this statute applies to county or city owned monuments; and (3) what constitutes a “display of permanent character.” Finally, Part III argues that this statute is in need of clarification and a provision that provides for plaques that contextualize these monuments within their local history. A brief conclusion follows.

Wahlers, Kasi E., Recent development. North Carolina’s Heritage Protection Act: cementing Confederate monuments in North Carolina’s landscape. 94 N.C. L. Rev. 2176-2200 (2016).

Comment on Pragmatic Reform in the Antiquities Trade

The 900-year-old bronze Dancing Shiva (Shiva Nataraja) returned by the National Gallery of Australia to India in 2014

Cornelius Banta, Jr. a recent graduate of the University of Houston Law Center has written an interesting piece in the Houston Law Review putting forth some pragmatic reforms to the antiquities trade. From the abstract:

The debate over the trade in antiquities generally pits archaeologists and antiquities-rich nations (cultural nationalists) against museums, art dealers, and private collectors (cultural internationalists). The former alleges that the latter’s lusting after antiquities perpetuates a black market that threatens the archaeological record and undermines the sovereignty of source nations. Conversely, cultural internationalists assert that policies favoring cultural nationalists stifle the free exchange of artifacts that belong to mankind as a whole, not just a select group of scholars and countries. The problem is that both sides are so intent on pointing the finger at each other that they fail to realize cooperation could produce a mutually beneficial outcome. The solution lies in changing the current adversarial debate into a cooperative dialogue where each side gives a little in order to ensure both sides gain more in the end.

This Comment attempts to break through the polarization in the debate over the trade in antiquities by stressing the shared interests of both sides and advocating pragmatic reforms. The current debate is first viewed through an intellectual framework, where the interests of cultural nationalists, who want to protect antiquities, runs up against cultural internationalists, who advocate for the free movement of antiquities. With the theoretical framework set, one can then analyze the debate through the current legal approaches towards regulating the antiquities market. The United States’ blend of criminal prosecutions and trade restrictions is illustrative of present efforts to control the antiquities trade. Yet despite the ineffectiveness of current polices, the hardline stances taken by both sides of the antiquities trade debate create an impasse for reform. Consequently, change can only come by recognizing the shortcomings of the current approaches and promoting civil and private remedies that benefit both sides.

Cornelius Banta Jr., Finding Common Ground in the Antiquities Trade Debate to Promote Pragmatic Reforms, http://www.houstonlawreview.org/2016/05/06/53-4-finding-common-ground-in-the-antiquities-trade-debate-to-promote-pragmatic-reforms/.

Student Note on Pre-Columbian Antiquities

Pre-Columbian antiquities from the Rufino Tamayo Museum in Oaxaca

The Texas Law Review has published a student note by Ryan Phelps titled Protecting North America’s Past: The Current (and Ineffective) Laws Preventing the Illicit Trade of Mexican Pre-Columbian Antiquities and How We Can Improve Them, 94 Tex. L. Rev. 785 (2016).

The piece is noteworthy mainly due to the prestige of the Journal, as the comment largely consolidates the arguments for advocating for more policing of the antiquities trade at the source and educating the buyers of illicit material at the market end.

From the Introduction:

With the problem at hand, this Note suggests that the current laws and recourses available that protect and deter the theft of Mexican pre-Columbian antiquities and these artifacts’ illegal import into the United States are ineffective at their goal of reducing these types of crime. Instead, a new policy is recommended that focuses on the active preservation of these antiquities before they are looted in the first place. This policy will rely primarily on educating the people of Mexico and the United States about the damage that this illicit trade causes and the penalties for those involved in this destruction. Specific groups of people will be targeted for this education, including people living in rural areas who may find or help transport stolen antiquities, border agents and tourists who may discover the antiquities as they are smuggled, museums and dealers who often serve as intentional or unintentional fences for these artifacts, and people involved in international transportation who may witness or take part in the trade.

Student Note on the Retroactivity of the 1970 Convention

Katarzyna Januszkiewicz has placed a student note in the Brooklyn Journal of International Law examining the “Retroactivity in the 1970 UNESCO Convention: Cases of the United States and Australia“.

From the Introduction:

This Note explores the domestic application of the United Nations Educational, Scientific, and Cultural Organization Convention on the Means of prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of 1970 (“UNESCO Convention” or “Convention”) by both the United States and Australia. The currently growing trend of returning looted artifacts to their countries of origin highlights the need for stricter law enforcement procedures and a possible reevaluation of the U.S. policy of the nonretroactive application of the UNESCO Convention, as applied to domestic law. As a major market country, the United States can lead the way in encouraging repatriation and in establishing better relations with source countries that do not have the resources to fight for their lost heritage on their own.

The Note argues that the non-retroactive features of the Convention lead to problems with it, which I’d argue is not really a major flaw of the Convention. Overall its a useful student note, but one that could have benefited from some editing by someone more familiar with the Convention and the literature examining it. Law students, if you are writing on cultural heritage, please get in touch. I’m happy to read drafts and offer suggestions on your writing and arguments.

Student Note on Underwater Heritage in the Dominican Republic

A small bell taken by Global Marine Exploration found off the coast of the Dominican Republic

Lydia Barbash-Riley, a student and Editor-in-Chief of the Indiana Journal of Global Legal Studies has an interesting piece examining the impact of globalization on underwater cultural heritage management in the Dominican Republic:

This Note addresses the management of the Underwater Cultural Heritage (UCH) in the Dominican Republic as a case study of the effects of two aspects of globalization on cultural and environmental resource management in the developing world: the international convergence of values and the horizontal delegation of state power to private actors due to economic constraints. This Note posits that even as the global community of states moves toward a consensus on the ethical management of the UCH, this convergence combined with the global trend of horizontal delegation may incentivize some lesser-developed countries to deal with the economic pressures of resource management by permitting treasure hunting. To examine this phenomenon, this Note addresses national and international laws protecting the UCH, including Dominican laws and their actual consistency with the 2001 UNESCO Convention for the Protection of the Underwater Cultural Heritage. It then discusses how management in the Dominican Republic is not always in accord with either the country’s own laws or the 2001 Convention to illustrate both the impacts of globalization on management of the UCH when government resources are scarce, and the resulting need for an extralegal, community-based solution. This Note concludes with a suggestion that the Dominican government, Dominican communities, and international actors consider a variant of Common-Pool Resource Management known as Living Museums in the Sea incorporated into a Multilevel Environmental Governance framework as a potential solution to counteract the economic pressures on governments to allow treasure hunting while providing for long-term preservation of the UCH in this and other developing countries.

Lydia Barbash-Riley, Using a Community-Based Strategy to Address the Impacts of Globalization on Underwater Cultural Heritage Management in the Dominican Republic, 22 Ind. J. of Global Legal Stud. 201 (2015).