Sunday 7 March 2010

Schultz and Barakat: Universal Recognition of National Ownership of Antiquities

A new text by Patty Gerstenblith of the DePaul University College of Law (Schultz and Barakat: Universal Recognition of National Ownership of Antiquities) has appeared in Art Antiquity and Law, Vol. 14, No. 1, April 2009 : The abstract reads:

Two decisions, one in the United Kingdom and one in the United States, decided just about five years apart, are significant for universalising the principle that vesting laws - laws that vest ownership of antiquities in a nation - create ownership rights that are recognized even when such antiquities are removed from their country of discovery and are traded in foreign nations. This basic principle has proven to be very controversial in the United States and has been subjected to bitter criticism; yet virtually the same legal principle, when decided in a British court, received little comment or criticism.
Probably because even if the British market is encumbered by as many morally-challenged collectors as its US counterpart, they are keeping quiet about it and (with the exception of a fraction of it) not allowing themselves to be represented and led by alarmist slogan-mouthing intellectual bantams at war with the archaeological record as in the US.

Although laws regulating cultural heritage have a long history, nations have enacted national ownership laws since the nineteenth century for the dual purposes of preventing unfettered export of antiquities and of protecting archaeological sites in which antiquities are buried. When ownership of an antiquity is vested in a nation, one who removes the antiquity without permission is a thief and the antiquities are stolen property. This enables both punishment of the looter and recovery of possession of the antiquities from subsequent purchasers. By making looted antiquities unmarketable, these laws reduce their economic value. National ownership laws thereby deter the initial theft and the looting of archaeological sites that causes destruction to the historical record and inhibits our ability to reconstruct and understand the human past. While reinforcing these goals, the Schultz and Barakat decisions also bring uniformity to the national treatment of this central legal principle.
We look forward to reading the critiques of what will undoubtedly be labelled yet more "cultural nationalist" "propaganda" by the no-questions-asked trade lobby. That is, of course if they can be bothered to read it, but this one is available online.

Gerstenblith, Patty, Schultz and Barakat: Universal Recognition of National Ownership of Antiquities (June 15, 2009). Art Antiquity and Law, Vol. 14, No. 1, April 2009 ; Technology, Law & Culture Research Paper No. 09-007.
Available at SSRN:
The Amenhotep III head in the centre of the Schulz case.

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