Cultural property disputes take a variety of forms. The cultural property in dispute, for instance, may encompass a wide range of material. One definition used in international law, for example, defines cultural property as “property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science.” Disputes over cultural property may occur among a variety of actors: some may be between sovereign states and other sovereign states; between states and sub-state sovereignties, such as indigenous groups; between sub-state sovereignties; between states and private actors, both individuals and institutions; or between private actors exclusively. The disputes may also cover a wide range actions concerning cultural property: ownership, destruction, conservation, transfer, plunder, and many others.
This paper focuses on just one type of cultural property dispute: claims by foreign governments for the restitution of an object from a U.S. museum. Most of the objects involved in this type of dispute are archaeological artifacts. This paper thus uses the terms cultural property, artifacts, and antiquities interchangeably, even though cultural property is a much broader term. This paper examines this specific type of dispute through a particular lens: how the legal rules implicated by the dispute influence negotiations during dispute resolution process. Section II.A addresses why this is an important question, both for the law of cultural property and also for negotiation theory. Section II.B explores what these legal rules actually are and how they operate in practice. Section II.C examines how these legal rules influence bargaining in the dispute resolution process, elaborating first on the mechanisms by which they exert this influence and then on how that influence manifests in bringing parties to the bargaining table but producing an unproductive discourse that is focused on rights and power rather than the interests of the parties. Section III proposes several ways to use the mechanisms by which law exerts influence on the dispute resolution process to improve that process by re-focusing it on interests and making its disposition of rights-claims more productive.
