For most Canadian legal scholars, the issues related to cultural heritage are almost exclusively about Canada’s Indigenous peoples. These are very important topics. However, Professor Robert Paterson has developed a unique research focus in the area of cultural heritage that involves topics rarely explored in Canada.
Professor Paterson’s background is in international trade and corporation law, but he has been working in the field of cultural property since 1990. An international legal perspective is a necessity in this field of research, because material objects move easily across national boundaries, raising many complex legal issues surrounding them that relate to that movement. Paterson’s latest research comes out of his membership of the International Law Association’s Cultural Heritage Law Committee, of which he has been Rapporteur since the mid-1990s. The committee is comprised of some thirty individuals from different countries and a recent volume, Handbook on the Law of Cultural Heritage and International Trade (Edward Elgar, 2014), represents the product of the committee’s most recent research efforts. Its earlier work has included underwater cultural heritage (which became the subject of a 2001 UNESCO treaty drafted by the ILA committee), safe havens for endangered cultural material, and repatriation guidelines for museums and other institutions.
“The 2014 book is about national restrictions on the export of important cultural material and complimentary restrictions on the importation of illegally exported cultural material from other countries. The problem is analogous to that surrounding drug trafficking, trafficking in endangered species, and to some extent illegal arms shipments. They all necessitate some sort of international cooperation in order to be effective,” explains Professor Paterson, who both co-edited and contributed to the volume.
Professor Paterson points out that one of the big problems with regulating international trade in cultural property is that it is much easier to take something out of a country than to import it. Most border control is at the point of entry, not at the point of exit, and it is very difficult for countries to effectively police material leaving a country.
“If an object successfully leaves Canada by evading export controls on cultural material, Canadian authorities usually only find out about it when it resurfaces for sale in another country,” he explains, “and then we need to go to that country and ask for its return, or help get in getting it back and that is a problem because many countries will not cooperate on an ad-hoc basis in these situations.”
In 1970 UNESCO, the most active international organization in cultural matters, developed a treaty that obligates signatory countries to honour cultural property export controls on a reciprocal basis. Canada joined the convention in 1978. If an object leaves a signatory country and goes to a country that is also a party to this convention, the importing country would generally be obliged to return it when authorities in the exporting country requested it to do so. However, dealing with countries that are not party to the treaty is quite a different matter.
“For the 2014 book, we asked committee members to contribute an outline of their own country’s laws relating to both export controls and the recognition of the export controls of other countries. The book contains over twenty such reports of national laws,” Professor Paterson notes. Along with editing all of the reports, Professor Paterson produced a lengthy introduction and wrote a thematic chapter on the export of cultural material that did not originate in the country from which it is being exported. He notes that in Canada restrictions on the export of cultural objects which have been in the country for more than 35 years but originated elsewhere seem difficult to understand.
“Part of the problem is that countries tend to look to other jurisdictions when drafting these laws – and Canada’s model was the United Kingdom.” However, as Professor Paterson notes, UK law is a special case, rooted in its history as a great imperial power. Furthermore, the argument used to justify the UK law – that previously imported foreign cultural objects have acquired “British nationality” in some way simply by being in the UK for a lengthy period – is debatable, highlighted by the long-standing dispute concerning the request by Greece to the United Kingdom that it return the Parthenon marbles in the British Museum to the Acropolis in Athens.
Professor Paterson argues that Canadian efforts would be better focused on Canadian material already outside Canada which is not covered by the UNESCO treaty or any other agreement. When the provinces were separate British colonies – and even after Confederation – Indigenous material left this country for museums in the UK, the United States and Europe. “Canada sometimes asks museums abroad to voluntarily return material, or simply buys material that comes up for sale, in order to bring it back to Canadian institutions, but this is on an ad-hoc basis,” Professor Paterson notes.
The introduction to the 2014 book explores more general issues of how these national laws fit into the framework of international trade law. “Liberal trade theory underlies the international law context that these national laws operate against – it is against any restrictions on the movement of material either out of a country or into a country,” Professor Paterson observes. But the World Trade Organization (WTO) and its related agreements do not address the issue of cultural property specifically – except to the extent of stating that it is improper for countries to introduce restrictions on either imports or exports. However, running contrary to this, is an exception that has been in place since 1947 which allows for export restrictions on cultural material. Although it has never been tested in Geneva in front of a WTO panel, the general consensus is that most of the national cultural heritage laws discussed in the book would be legitimate even under the general prohibition on export/import controls, as long as they were seen as within the spirit of the exception.
Professor Paterson hopes that the result of this recent volume and other similar publications will be a rethinking of national cultural property export control laws in the future. “One of the problems out there is that there is no uniform law. The Cultural Heritage Law Committee of the International Law Association has not gone so far as to actually develop such a law. But this book is a building block. The next logical step is for non-governmental institutions, such as the International Law Association, to work on developing a more realistic model law for countries to adopt. Such a law would also provide the basis for countries in which illegally exported material now resides to decide which foreign export control laws they should cooperate in enforcing, and which they might refuse to implement,” Professor Paterson concludes.
PROFESSOR EMERITUS ROBERT K. PATERSON
Professor Paterson taught law at UBC from 1975 to 2016. A member of the New Zealand and BC bars, he chaired the 1986 BC Task force that led the province to be the first jurisdiction in the world to adopt the UNCITRAL Model Law on International Commercial Arbitration. He is on the NAFTA roster of panelists that hear challenges to trade relief measures. He an associate editor of the International Journal of Cultural Property and organised the first global conference on the repatriation of indigenous cultural property at UBC in 1994. He co-edited Protection of First Nations Cultural Heritage: Laws, Policy and Reform (2009) and co-authored Cultural Law: International, Comparative and Indigenous (2010).
