Museum Exhibits or Ill-Gotten Gains: A Legal and Philosophical Look at Cultural Property Law

Authors

Anthony E. Gambino, Fordham University at Rose Hill

Abstract

The foundation of cultural property laws was laid at the Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict. The convention, which usually revolved around the discussions on former laws of warfare, had to switch gears to respond to the Nazi’s new tactic of intentionally stealing or destroying cultural property as a means to demoralize the enemy. The convention’s focus was inclusivity, which defined cultural property as any “movable or immovable property of great importance to the cultural heritage of every people.”

However, that overly simplistic definition that intended to serve as a source of clarification, has been the catalyst of confusion and controversy in regard to who has custody of artifacts -- which many could claim are owned by all of humanity. Various alternate ideologies have emerged in trying to make sense of the ambiguity of who owns cultural property? In addition, a multitude of international efforts have formulated treaties that stem from Nazi Germany’s desire to accumulate wealth and to psychologically dominate and disable the Indigenous people’s culture through the seizure of famous works of art.

What will follow is a discussion on the impact of how cultural repatriation laws, established during the post-Nazi occupation of Europe, encouraged the discovery and return of looted art during Nazi occupation as well as the reopening of cases that are hundreds of years old. However, while noble in nature, many of these laws formed to initially protect artifacts are being used to justify not returning artifacts to their homeland. Some argue "the notion that identity, whether individual or group, must forever remain attached to a particular object is unsettling.”

A contemporary case where this idea was tested played out in the courts of the United Kingdom. Here, the UK rejected India's most recent demand to return its priceless artifacts like the "Kohinoor Diamond" and "Sultanganj Buddha" that were stolen, looted, and/or smuggled into England during British colonial rule. The British government is citing a law (British Museum Act 1963) that “justifies” the reasons for not returning the pieces. Other arguments employ a simpler ideology of whoever owned it originally, still owns it regardless of present circumstances.

By using Kant’s Categorical Imperative and Mill’s ethical theory of Utilitarianism this Note will explore the benefits as well as the dangerous implications set within these cases and philosophical doctrines. Leading to the conclusion, that the idea of a ‘universal museum, for all its Enlightenment virtues and educational potential, is still at its core a problematic imperialist perspective. What is needed is the creation of a third impartial council skilled in repatriation law that works in conjunction with museums, indigenous tribes, nations, and the court to ensure a more just and cosmopolitan future of museums.

Recommended Citation

Anthony E. Gambino, Museum Exhibits or Ill-Gotten Gains: A Legal and Philosophical Look at Cultural Property Law, 2 Fordham Undergrad. L. Rev. (2020).
Available at: https://research.library.fordham.edu/fulr/vol2/iss1/7