Due to the fact that they reflect a state's history and identity, cultural properties are of utmost significance. Theft and other illegalities involving art have grown over time as a result of the severe economic downturns in the global market for these goods. The UNESCO convention legal framework was implemented in 1970 with the intention of mitigating and decreasing art crime. In order to protect their cultural legacy, it offers a legal framework for returning illegal cultural properties to their initial, legitimate owners. However, as evidenced by the 2013 Hopi tribe Case, there are gaps in the judicial system and enforcement when it comes to the return of foreign cultural property. Therefore, this dissertation aims at analyzing the cultural property legal framework for the Hopi case. The evaluation of the laws is important in streamlining and development of the cultural laws in the ethical and political contexts.
Introduction
Cultural property is defined as a material of archaeological value which originates from the ground within specific borders of a nation (UNESCO, 1970).It includes art antiques artifacts and architecture. They are of utmost importance to humanity since they represent the history of the social and cultural development of civilization, religion, humanity and technological advancements (Vitale et al., 2009). With the effort of preserving their cultural heritage, various ethnic communities in the world have tried to reclaim ethnic artifacts over the past few years. A classic example is an Indian tribe, which has blocked auctions recovered many exotic artifacts believed to be of cultural value in America (Vitale et al., 1990). A case study reported in the New York Times by Tom Mashberg on 3rd April 2013 gives an account of a rare occurrence in a bid to reclaim cultural heritage. The Hopi Indian tribe moved a motion to stop the sale of cultural artifacts believed to be sacred and of religious importance in France.
Art is, therefore, a commodity and an investment that is unmeasured and beyond monetary value. An example is the Adele Block Bauer painting, which was sold at the US $135 million at Christie's auction house in the year 2006.This, is one among the many paintings and portraits sold at extreme prices. The art market has grown to be a lucrative business venture with many investors across the world since world war two. Because of the economic recession, illegal conducts regarding cultural properties have escalated dramatically over the past years (McGuigan & Shannon, 1997). It involves art theft from private and public collections, looting of artifacts from cultural origins, and smuggling into foreign countries (illegal export and import). An example is the Mona-Lisa case of theft, which is reported to have taken place in the early 20th Century (Czegledi et al., 2010). Art crime is mainly carried out to meet the high international supply-demand of the artifacts. Despite the efforts made in detecting inauthentic and illegal artwork globally, the crimes continue to escalate due to the increasing financial incentive in the global markets (Czegledi et al., 2010).
Unfortunately, neither ancient art nor cultural property is a renewable commodity, and therefore the destruction of the cultural artifacts destroys the cultural heritage that is supported by humanity. Protection of cultural property is therefore vital. Consequently, Patrimony laws that govern prosecution of art crimes, the authenticity of artwork, museum and gallery arts, the artist's rights, domestic and international sales, (imports and exports) are an integral part of the constitution. The laws are shaped by the general principles of the UNESCO national convection of 1970 and The Hague convection of 1954 (UNESCO, 1970). The enforcement of the art laws can be achieved through either specific or general statute that involves both criminal and civil forfeiture (UNESCO, 1970). Different agencies are involved in the investigation and enforcement process. They include the FBI, Interpol, Homeland Security, National Park service State Department Cultural Heritage Center, Interpol, Interior Department. In some cases, the enforcement of these laws is restricted due to gaps in the legal framework. The art laws continue to evolve and develop rapidly due to the complexity of prosecution of the cases involved.
Problem Statement
A majority of cases concerning the repatriation of cultural goods from foreign countries are unsolved or dismissed in USA (Harding et al., 1997). A case study involving the Hopi tribe Arizona is a classic example of the assertion. Their cultural heritage claim of the sacred masks to be repatriated and the Paris action to be stopped was based because the perpetrators obtained the Hopi artifacts illegally; some are believed to be excavated from shrines, some confiscated by missionaries and others illegitimately sold. The case was ruled by the UNESCO convection, under the Cultural Property Protection Act that provides the legal framework for prosecution of art crime. The case was dismissed on claims that the legalities regarding criminal ownership were vague (Harding et al., 1997).
The case was ruled by the UNESCO convention, under the Cultural Property Protection Act that provides the legal framework for prosecution of art crime. Despite the existence of the legal framework, the complexities involved in the case bring about questions of the comprehensive nature of the repatriation law. Some scholars argue in favor of the law whereas others question the enactment of the art law concerning repatriation of the art of cultural value from other countries. The executive director of the American Indian Association Jack Trope and affirm the existence of the legal gap by saying that the leverage of international repatriation is unattainable. (New York Times, 2013). The main objective of the review is to analyze the legal framework regarding the international repatriation of cultural artifacts and protection of cultural heritage.
Critical analysis
The major legal instrument of cultural law is the one introduced by UNESCO in 1970. It provides a legal framework for the prevention and prohibition of the illegal exportation, importation, and ownership transfer of a given cultural property (UNESCO, 1970). Under this law, there are the NAGPRA (Native American Graves Protection and Repatriation Acts) that governs the retrieval of American Indian cultural properties? The UNESCO Convention states that illegal sale and acquisition cultural properties deprive the owners of their cultural heritage, therefore mandates a cessation of illegal import and export of cultural properties, and allows repatriation of cultural objects to legal owners. However, the comprehensive nature of the legal framework has been questioned over the years due to the complexity of cases involved.
In support of the argument, United States of America lacks a comprehensive patrimony law that covers all features of the nature of the cultural property or archaeological objects. First and foremost the definitions of cultural property which is concerning the cultural and economic significance in contrast to the traditional legal definition that has an equal perspective of all forms of art (Bleisten et al.,2012). In the Corrow case of1997, the cultural artifacts were found to be obtained by a dealer from Hataali family and due to gaps and uncertainty in the definition of illegal ownership of cultural property, for example, inadvertent looters (Czegledi et al., 2010). Therefore, the federal laws applied offer-limited protection of cultural property in comparison to other nations.
Secondly, the UNESCO convection in the USA not retroactive- meaning that the agreed laws are not applicable to all cultural property present in foreign museums (O'Kee et al., 2000). Despite USA being a partisan of the UNESCO convection, legal reservations were made whereby the Act is restricted to the prevention of the importation of cultural property as opposed to the exportation of illegal properties. Similarly, it constitutes of laws controlling the repatriation of cultural goods from the USA as opposed to the repatriation of cultural property from foreign countries declaring them as inalienable (Hardling et al., 1997). Therefore, it is highly favorable to Original State hence falls short in protecting its cultural heritage.
Besides, the laws lack clarity and certainty concerning the time duration of enactment. Article 7(a) of the international convention implies that the laws only apply to illegally exported cultural property to the states concerned and after the treaty has been signed (UNESCO.,1970).Therefore, the law is not applicable in repatriation attempts of cultural artifacts stolen or looted before it was enacted in November 1979. However, the involved states are permitted to discuss their terms of the reimbursement of cultural property, which was illegally attained before the UNESCO Convention. Majority of the states involved in the original draft of the laws were disappointed due to the inadequacies and ambiguities (Watkins et al., 2000)
Lastly, the enactment of the NAGPRA law is problematic because it is applied uniformly to groups basing on their resources, organization, religion, history, and culture. As a result, the legal framework is not equally applicable to all native groups in America. For example, the Indians natives in Alaska are often discriminated as the American Indian cultural property. This is a fact that has greatly curtailed their cultural identity (Hardling et al., 1997). The litigation survey reveals the complex nature of the laws about tribe organization, ease of access to economic and political resources in repatriation cases (Lyndell et al., 2000).
In contrast to the arguments, various scholars argue that NAGPRA act is comprehensive due to various reasons. First, it offers a legal framework conclusive of definitions and related contexts. Secondly, it offers provision for the restitution of newly discovered archaeological artifacts federally owned by Native Americans. Besides, it offers a mechanism for the restitution of the remains and objects considered of cultural patrimony. Finally, it restricts and prohibits trafficking of the illegally obtained cultural properties. The legal framework provided acts as a common legal ground for effective communication and co-operation between the respective international markets for repatriation of cultural artifacts. As a result, the laws foster global economic, cultural and legal growth (UNESCO 1970).
Moreover, the cultural protection acts regarding repatriation have been effective leading to numerous successful repatriation of cultural properties over the past few years. The Federal Bureau of Investigations (FBI) restores stolen cultural artifacts, an approximate number of 11,850 objects, valued at $160 million have been returned to legal owners and cultural societies in the past. An example is the successful retrieval of a young man's portrait by Krzyszt of Lubieniecki which was stolen from Poland and believed to have been destroyed after 60 years (Czegledi et al.,2010). The Cultural protection act states that cultural property is among the basic elements of national culture and civilization and its protection is a vital part of the law.
Conclusion
In conclusion, the legal framework regarding the repatriation of cultural properties is incomprehensive concerning the repatriation of cultural property from foreign countries, timeframe before its enactment in 1970 and its enactment in the ethical, political contexts. The latest improvements in art law on illegal cultural property reflect the emergent sentiment that the legal framework needs reform and expansion with the scope of protecting American Indian Cultural Heritage effectively.
References
Bonnie Czegledi. (2010). Crimes against Art, International Art and Heritage Law
Katherine D. Vitale. (2009). The War on Antiquities: United States Law and Foreign Cultural Property, 84 Notre Dame L. Rev.1835. Available at: http://scholarship.law.nd.edu/ndlr/vol84/iss4/7, Accessed on 16th oct 2017
Joe Watkins. (2000). Indigenous Archaeology American Indian Values and Scientific Practice of art.
Lyndell V Prott. (2000). Commentary on the UNESCO 1970 Convection on illicit trafficking of art.
Patrick J O’kee, (2000). Commentary on the UNESCO 1970 Convection on illicit trafficking
Sarah Hardling, (1997). Justifying Repatriation of Native American Heritage
Tom Mashberg, (2013). Hopis Try to Stop Paris Sale of Artifacts. New York time.3rd April 2013
United States Attorneys bulletin. (2016). Cultural law 2010; UNESCO Convection of 1970.March 2016.
