Lawless Cultural Property Policy? US: where Con Law meets Cultural Law

April 14, 2011

Stephen Urice, Director of the Project for Cultural Heritage Law & Policy, and Andrew Adler, both professors at University of Miami School of Law, co-authored a working paper titled “Resolving the Disjunction between Cultural Property Policy and Law: A Call for Reform.“

To say that our cultural property policy is lawless is probably an overstatement, particularly when law schools and law firms are increasingly recognizing the areas of cultural and art law, with more and more practitioners positioning themselves to practice in these fields. However, the US government branches are not in sink as to the best course of action regarding cultural property. Urice and Adler in their abstract note:

In recent years, the Executive Branch has aggressively restricted the movement of cultural property into the United States, but it has repeatedly done so without regard for constraining legal authority. … the Executive Branch has recently repatriated an Egyptian sarcophagus and an antique French automobile to their respective countries of origin, but disregarded well-established judicial authority in the process. . . . [The] Executive Branch has similarly sought to repatriate cultural objects to Italy, Peru, and Southeast Asia by relying on statutory authority that Congress plainly never designed for such a purpose.

The authors argue that “statutory reform is necessary to resolve the disjunction, modernize the legal framework, and restore the rule of law.” They suggest, correctly, that “the current legal framework is antiquated; it is the product of the 1970s, when the cultural property field had not yet emerged from its embryonic state.” However, the solution hinted, less stringent import restrictions on cultural valuables, is dangerous because it will undermine the international efforts of curbing the illicit trafficking in cultural treasures.

One of the observation in the paper is of particular note. Urice and Adler suggest that “Congress should also revisit the general allocation of cultural property responsibility within the Executive Branch.” While the Departments of Justice and State are involved in policy making the Department of Commerce is not. Indeed, the United States does not have a Ministry of Culture unlike other countries. While having a uniform entity designed to address these and other cultural questions would be best in dealing with “the unique issues surrounding cultural property,” in light of the current economy we should not hold our breath for one (or a reform).