Home > Journals > WMLR > Vol. 65 (2023-2024) > Iss. 5 (2024)
William & Mary Law Review
Abstract
The complex history of cultural property regulation in the United States, discussed below, suggests a lack of consensus regarding the definition of the legislation’s target. However, as this Note argues, it is futile to attempt crafting a precise definition of the objects qualifying for protection under such legislation without first addressing the dueling interests inherent in the operative words. An examination of the various aims of cultural property legislation reveals two competing goals. On one side exists the desire to protect cultural heritage for the world’s enrichment, and on the other is the desire to protect private ownership rights. These interests are embodied in the inherent tension between, and within, the words corresponding to these respective goals—“heritage” and “property”—and their interactions with what are arguably more straightforward supporting words, such as “objects” and “antiquities.” This Note argues that colloquial word associations with “property” contribute to the difficulties legislators and courts face in regulating and prosecuting cultural property trafficking. Due to these connotations, the international conventions using these terms have laid an insufficient foundation for American federal legislation aiming to regulate cultural property because the use of the word “property” characterizes cultural heritage as a commodity, rather than as something of value for entire communities.
[...]
This Note proceeds in four Parts. Part I provides an overview of relevant cultural property legislation spanning from the Hague Conventions of 1899 and 1907 to the Convention on Cultural Property Implementation Act of 1983. Part II explores the impact of connotations associated with the word “property” by analyzing observable usage as it exists in academic literature and case law. To add quantitative strength to the anecdotal observations, Part III introduces a corpus linguistics study which analyzes corpora, bodies of text consisting of a large number of sources, for common words and patterns. Part IV contextualizes the results of this corpus linguistics study within the relevant case law, showing how the phrase “cultural property” is unavailing in such disputes, and proposes new terminology as a solution.
This abstract has been taken from the author's introduction.