James A. R. Nafziger

Cultural Law: Cultural Law: An Introduction

The Cultural Dimension of the Legal Process Legal issues may lead multiple lives. They can be political, economic, social, historical, or cultural. Normally, the particular classification of an issue, in the abstract, is not so important. What is important, however, is to understand how a particular nonlegal dimension may condition the analysis of an issue and the appropriate response to it. Gaining this understanding is a matter not only of viewpoint or specialized information but also of professional skill. It is a skill that is best acquired by gaining a comprehensive understanding of the manifold ways in which a particular dimension of human experience – for our purposes, the cultural dimension – affects the legal process. The first two chapters in this book address the problem of cultural conflict, the interaction of culture and law, a working definition of cultural law, and the characteristics of both culture and law. The remaining chapters examine the interaction of culture and law in specific contexts of cultural expressions, practices, and activities such as art, traditional knowledge, sports, and religion.

Cultural Law: Cultural Material: Rectification, Criminal Justice, and Dispute Resolution

Introduction Claims for the return or restitution of cultural heritage are of central importance on both domestic and international levels of cultural heritage law. On the domestic level, for example, the historical and cultural identity of tribal and other indigenous groups may be at stake in efforts to reclaim significant artifacts from museums, art galleries, and private collections. On the international level, the recovery of stolen cultural material, whose value is estimated to be more than

Cultural heritage issues : the legacy of conquest, colonization, and commerce

3 billion annually, requires substantial diligence by customs officials and cooperation among governments, private institutions, and individuals. Obligations to return cultural material to territories of origin date back at least to Greek and Roman times. Until recently, those obligations were addressed almost exclusively to military-related problems of plunder, the spoils of warfare, and occupation. For example, the Hague Conventions of 1899 and 1907, followed by the reparation provisions of the Treaties of Versailles and Saint-Germain after the First World War, underscored the illegality of military plunder and articulated the remedy for victim states. Twenty-five years later, during the Second World War, a leading scholar, urging moderation in dealing with the Germans after the war, referred to the Treaty of Saint Germain. Its provisions for the return of historical and cultural material took account, on a reciprocal basis, of the cultural heritage of both the victor, Italy, and the loser, Austria: [The Treaty] stated, however incompletely, the reasonable principle that historical material belongs, wherever possible, to the land of its birth; and though it might prove highly impracticable to carry this principle through to its ultimate conclusion, the mere fact of its enunciation on reciprocal terms , while the smoke of the battle and revenge still clung to Europe, was a noble signal of growth.