Friday, December 8, 2006

Posner's Skepticism of International Protection of Cultural Property


Eric A. Posner's posted Skeptical Observations" The International Protection of Cultural Property: Some Skeptical Observations. Here is the abstract:

Cultural property is subject to two international legal regimes, one of which protects cultural property during wartime, and the other of which regulates the international trade in cultural property. Neither legal regime has been notably successful. Cultural property is often targeted and destroyed during wars, or given inadequate protection. And the international trade in cultural property flourishes because states have been unwilling to invest resources in controlling it. As a result, scholars and advocates argue that both legal regimes should be strengthened. Sanctions should be enhanced; states should be forced to devote greater resources to complying with treaties; treaty obligations should be made stricter and more detailed; and states that have not ratified the existing treaties should be pressured to do so. These proposals are, however, unwise. Cultural property is, in most ways, just like ordinary property, and existing laws and practices that govern the treatment of ordinary property should apply to cultural property as well. The distinctive features of cultural property do not justify the existing treaty regimes or proposals to strengthen them.

I'm looking forward to reading this and hope to have some have some thoughts on it in the spring.  Right now I'm note that it sounds like it has a similar approach as Posner and Vermeule's important article on Transitional Justice as Ordinary Justice, which appeared in the Harvard Law Review back in 2004.  Similar, at least, in that it tries to treat something scholars have thought as special (cultural property or transitional justice) as something best dealt with using more standard paradigms.  (I've thought since reading their article that we might also think of "transitional justice as ordinary injustice," but that's a subject for exploration at another time, on another blog....)

Close readers of propertyprof may recall our occasional discussion of cultural property and the Elgin Marbles in particular.

Alfred L. Brophy
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