Cultural Property

Abstract Chapter 2 argues that cultural property is poorly regulated and understood in international law due to uncoordinated overlapping regulatory regimes and a persistent failure to develop and adopt a functional and progressive definition of cultural property. It further explains how transposing the attributes of new property identified in Chapter 1—imputable ownership, responsiveness to contextual factors, separability, and conferral of a benefit to cultural property—imparts credibility and coherence to an umbrella notion of cultural property that lends itself to more predictable regulation. Section 2 examines how cultural property is concurrently regulated by four distinct bodies of international law, none of which appear to absorb newer forms of cultural property. Section 3 critiques the tendency of international lawmakers to favour piecemeal regulatory regimes specific to cultural property when a common regulatory regime could have sufficed. The outcome of their approach is a series of bifurcations, where cultural property is distinguished from cultural heritage, and regulated differently depending on whether it is tangible or intangible, and whether it lies above water or underwater. These divisions have a distortive effect, cultivating the erroneous impression that cultural property is merely one of several discrete objects of regulation when it is, in fact, the principal object of regulation. Section 4 advocates the assimilation of cultural property to new property to mitigate the definitional chaos brought about by uncoordinated and piecemeal regulation outlined in Sections 2 and 3, and discusses the implications of regulating cultural property as new property in international law. Section 5 concludes.