Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.

*Sudiksha Dhungel

Abstract 

Cultural heritage is more than artifacts or traditions; it is the silent but profound testament to a community’s identity, struggles, and resilience. “Engraved in Blood” symbolizes the sacrifices made throughout history to preserve this legacy, often in the face of adversity. This article delves into the intricate relationship between cultural heritage and human rights.  It emphasizes the importance of recognizing cultural heritage as an inalienable human right and provides actionable solutions for its preservation. The findings highlight the socio-legal challenges that cultural heritage faces, from globalization and conflicts to cultural appropriation and neglect. Practical implementations proposed include policy reforms, increased community participation in heritage conservation, and the integration of educational initiatives to foster awareness and engagement in its protection. While focusing on the Indian socio-legal context, the research reflects on the delicate balance between modernization and heritage preservation, along with the evolving legal frameworks addressing these issues. Socially, this paper advocates for enhanced recognition of cultural heritage role in shaping identities and fostering societal cohesion. Ultimately, the article envisions cultural heritage as a bridge between past and future, reflecting shared histories and collective aspirations.

Introduction 

Cultural heritage is not just a relic of the past but a living, breathing testament to human existence. It acts as a link between our ancestors, the present, and the future by encapsulating the tales, hardships, and triumphs of many generations. The threads that weave cultural history into the fabric of identity are increasingly in danger of fraying in a society that is modernizing at a rapid pace. “Engraved in Blood” reflects this profound struggle, representing the generations that fought—sometimes at tremendous personal cost—to preserve their cultural heritage. This essay investigates the complex relationship between cultural heritage and human rights, contending that heritage is not a privilege but an essential right. By addressing socio-legal issues and suggesting practical answers, it emphasises the critical necessity to conserve cultural heritage in an era of fast modernisation and globalisation.

This article seeks to explore the intricate interplay between cultural heritage and human rights, positing that heritage is not merely a privilege but an inalienable right. It analyzes the socio-legal difficulties that endanger cultural heritage and emphasizes the importance of protecting it in order to maintain societal cohesiveness and identity. With an emphasis on practical solutions, this article emphasizes the need for combining educational activities, policy reforms, and community involvement to maintain this precious legacy. The Indian socio-legal setting serves as a focal point, demonstrating the delicate balance between legacy preservation and modernity, with far-reaching consequences for global frameworks. Finally, this article hopes to motivate a community effort to acknowledge and advocate for the protection of cultural heritage as a fundamental human right.

Conceptual Framework

Cultural heritage, in its essence, embodies the legacy of a community, encapsulating both tangible and intangible elements that define its identity. Tangible cultural heritage refers to physical manifestations such as monuments, artifacts, historical buildings, and archaeological sites, which stand as enduring symbols of human creativity and historical significance.

On the other hand, intangible cultural heritage encompasses non-physical attributes, including traditions, oral histories, languages, rituals, and knowledge systems. These intangible aspects are vital as they carry the living traditions of a community, fostering a sense of continuity and connection across generations.

Cultural heritage is closely tied to human rights, as protecting it ensures the fundamental right to participate in and enjoy one’s culture. Human rights instruments like the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) highlight cultural rights as vital for dignity and identity. Recognizing cultural heritage as a human right helps preserve unique identities and promotes a diverse global society.

Cultural heritage shapes individual and collective identities, fostering belonging and societal cohesion. It connects the past with the present and strengthens intergenerational bonds, making it crucial in maintaining diversity and cross-cultural respect in an increasingly globalized world.

International conventions, like the United Nations Educational, Scientific and Cultural Organization (UNESCO) World Heritage Convention and national laws work to protect cultural heritage, but challenges remain in enforcement, adaptation, and addressing issues like cultural appropriation and neglect.

Socio-Legal Challenges to Cultural Heritage

Cultural heritage faces significant challenges in a globalized world. While globalization fosters connectivity, it also brings cultural homogenization, overshadowing unique traditions. Conflicts and wars exacerbate this issue, with cultural artifacts getting targeted and destroyed, as seen in- Syria and Iraq. Looting and trafficking further deprives nations of such history. These difficulties are not only cultural or legal; they exist at the crossroads of law and society, making them socio-legal in nature. The word “socio-legal” refers to how legal frameworks interact with cultural, social, and political realities, determining whether legacy is safeguarded or neglected. While laws may technically protect cultural sites and practices, their success is frequently dependent on enforcement, public awareness, and government priorities.

Cultural appropriation and neglect are subtle yet harmful threats to  the preservation and authenticity of cultural heritage, as well as the cultural identity of the communities that maintain these traditions. Cultural appropriationoccurs when components of a culture, such as traditional clothes, rituals, or art, are commodified or exploited without proper acknowledgement, resulting in the loss of their original value. For example, indigenous fashion designs and spiritual practices such as yoga are sometimes commercialized without regard for their origins. Neglect, on the other hand, results from a lack of priority, which causes cultural sites to deteriorate, languages to die, and traditional crafts to decline. Cases such as the fading away of Ainu language in Japan and the erosion of Harappan archeological sites show how neglect may destroy cultural identity over time. Additionally, neglect due to lack of prioritization leads to the deterioration of cultural sites.

The most complex challenge to cultural heritage conservation is balancing modernization with heritage preservation. Urbanization and technical improvements frequently collide with the urge to preserve cultural identity, as growing cities, infrastructure projects, and commercialization endanger heritage sites and traditional customs. Finding a balance between these competing goals necessitates creative solutions, such as using sustainable materials in restoration, utilizing modern tools like 3D scanning for documentation, and incorporating heritage conservation into urban planning. Inclusive planning guarantees that local people, historians, and policymakers all participate in decision-making, preventing cultural oblivion. Respect for the past entails recognizing the historical and cultural relevance of heritage places and traditions while assuring their preservation without jeopardizing authenticity.

Enhanced Approaches to Cultural Heritage Preservation: Policy, Community, and Innovation

Policy Reforms for Stronger Legal Protections of Cultural Heritage
In order to ensure the safeguarding of cultural heritage, robust legal frameworks must be established, as existing safeguards are frequently undermining by lax enforcement, legal loopholes, and insufficient international cooperation. While the UNESCO conventions establish worldwide standards, they lack binding enforcement measures, allowing illicit trafficking and destruction to continue. National laws, such as India’s Antiquities and Art Treasures Act (1972), also face challenges due to inadequate monitoring and bureaucratic delays, resulting in continuous smuggling and uncontrolled development near heritage sites. These legal structures must be bolstered by stronger regulation, additional funding, and improved integration of community engagement in preservation activities. UNESCO agreements play an important role in encouraging governments to establish comprehensive policies, but without improved domestic implementation and international collaboration, cultural heritage is subject to exploitation and neglect.

Community Participation in Preservation Initiatives
Cultural heritage preservation cannot succeed without the active involvement of local communities. By engaging the people who live within and around heritage sites, preservation efforts gain authenticity and relevance. Empowering local communities to take ownership of their cultural heritage helps ensure its protection for future generations. Numerous case studies have shown that community-led initiatives, such as the Luk Lan Muang Phrae project in Thailand, which revitalized traditional crafts through local engagement, and the Haida Gwaii Watchmen program in Canada, where indigenous stewards protect and educate visitors about sacred heritage sites, can resurrect long-forgotten practices.

Integration of Educational Programs to Raise Awareness about Cultural Heritage
One of the most effective ways to ensure long-term preservation is to cultivate an understanding and appreciation of cultural heritage among younger generations. Schools and universities can integrate heritage education into their curricula, helping students to value and protect cultural landmarks and practices. Public awareness campaigns also play a crucial role, providing platforms for discussions on the importance of preserving heritage in the face of rapid modernization.

Leveraging Technology to Document and Protect Heritage
In today’s digital age, technology serves as a powerful tool in heritage preservation. Digital documentation, including 3D scanning and virtual tours, allows for the preservation of cultural sites in their current form, mitigating the risks posed by natural disasters or urban development. Technologies such as Geographic Information Systems (GIS) are also used to map and monitor heritage sites, ensuring their continued protection.

A critical analysis of the Indian socio-legal framework for cultural heritage preservation. 

Historical Sacrifices Made to Protect Indian Cultural Heritage
Throughout India’s history, various communities have made immense sacrifices to protect their cultural heritage. The struggle to safeguard ancient temples, manuscripts, and rituals has been ongoing, often in the face of colonial exploitation and modern encroachment. Movements like the conservation of the Sanchi Stupa or the protection of Vedic manuscripts from looting demonstrate the resilience of Indian society in preserving its cultural identity.

Current Legal Frameworks and Their Limitations
While India has a robust set of legal protections for its cultural heritage, including the Ancient Monuments and Archaeological Sites and Remains Act (1958), enforcement remains a challenge. Issues such as bureaucracy, lack of funding, and insufficient penalties for violations have hampered the effectiveness of these laws. Furthermore, the complex legal structure often creates confusion about ownership and rights, which can result in exploitation or neglect of cultural assets.

Case Studies Highlighting Successes and Challenges in Indian Heritage Preservation
One notable success is the protection of the Konark Sun Temple in Odisha, which was inscribed as a UNESCO World Heritage site. Through collaborative efforts between the state, local communities, and international experts, this site has been preserved. However, challenges remain, such as the ongoing threats to the Taj Mahal from environmental degradation and illegal construction around heritage sites. These cases illustrate the complex nature of cultural heritage preservation in India, where success often relies on collaboration and sustained efforts.

The Evolving Role of Indian Society in Preserving Cultural Heritage Amidst Modernization
As India continues to modernize, the tension between progress and preservation becomes more pronounced. Urbanization, industrialization, and the rise of global consumer culture pose significant risks to heritage preservation. However, there has been a growing recognition of the need to protect cultural heritage, with Indian society becoming increasingly involved in efforts to safeguard its history. Initiatives like the Indian National Trust for Art and Cultural Heritage (INTACH) have engaged the public in heritage conservation, ensuring that modernization does not come at the cost of cultural identity.

Broader Social Implications of Cultural Heritage Preservation 

By reserving traditions, languages, and historical landmarks, societies pass on lessons embedded in their cultural identity-offering continuity in an ever-changing world. This sense of inheritance is vital for intergenerational equity, reminding us that the treasures we protect today are not merely relics but the legacy of tomorrow.

Moreover, cultural heritage serves as a powerful medium for cross-cultural understanding and global solidarity. In a world marked by increasing polarization, the appreciation of diverse traditions and practices fosters empathy, respect, and collaboration. Initiatives such as UNESCO’s World Heritage program exemplify how international cooperation can safeguard shared human history, strengthening the ties that bind us as a global community. However, this interconnectedness also places a moral obligation on societies. Preservation efforts must address social and ethical responsibilities by being inclusive and respectful of marginalized voices. These efforts require careful consideration of whose heritage is prioritized, how it is represented, and how to ensure its meaning is not diluted or exploited for commercial gain. Ultimately, cultural heritage preservation is not simply about protecting artifacts or sites, it is about honoring the values, identities, and histories they embody, ensuring that they continue to inspire future generations.

Recommendations and Future Directions

Preserving cultural heritage in a modernizing world requires bold and innovative steps. Strengthening laws and policies, both internationally and domestically, is essential. Treaties like the UNESCO Convention should be enforced more effectively, through more robust sanctions for infractions, enhanced international collaboration, and more stringent compliance monitoring. This would entail real-time monitoring of illegal trafficking networks, increased funding for heritage protection initiatives, and required reporting on conservation efforts. Furthermore, binding legal mechanisms that mandate signatory nations to act quickly to prevent encroachments, illicit trafficking, and the destruction of heritage sites could be implemented by UNESCO and national governments. To guarantee the ongoing preservation of cultural assets, governments must also strengthen sanctions, fill legislative loopholes, and enhance funding.

Connecting people to their heritage is equally important. Schools can teach heritage studies, and community events like storytelling, heritage walks, and workshops can make preservation engaging and relevant. Digital tools like IoT (Internet of Things) frameworks, virtual reality tours, and online archives can monitor sites and bring heritage to a global audience.

Sustainability is key to ensure the long-term protection of cultural assets while tolerating modern development. Practices like adaptive reuse, eco-friendly restoration, and community-driven upkeep can balance conservation with modernization. Interdisciplinary collaboration between experts, policymakers, and communities can create innovative solutions for challenges like urban encroachment and climate change. By embracing technology, sustainability, and collective effort, we can ensure that cultural heritage thrives in today’s world and for generations to come. Additionally, virtual reality tours, 3D documentation, and online archives can engage a global audience while preserving sites at risk of destruction.

Conclusion

Cultural heritage is more than just a collection of artifacts, traditions, or landmarks; it is a bridge between the past and the future, forged in the sacrifices, struggles, and unwavering spirit of those who fought to protect it. Every monument restored, every ritual practiced, and every story passed down carries the echoes of resilience and defiance, reminding us that heritage is not merely inherited; it is preserved through the strength and resolve of those who came before us.

As we navigate the challenges of modernization, globalization, and climate change, we must embrace cultural heritage as an inalienable human right. Its preservation is a shared responsibility, requiring the united efforts of communities, policymakers, and individuals alike. By valuing heritage not just as a relic of history but as a living testament to identity and humanity, we ensure that its essence endures, binding generations, fostering understanding, and inspiring a collective future that honors the legacy of the past.

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*Sudiksha Dhungel is a law student with a keen interest in legal research, policy, and societal impact. Passionate about fostering intellectual discourse, she actively engages in academic writing, mooting, and initiatives that promote mental wellness, along with other meaningful discussions on contemporary legal issues. Committed to both scholarship and practical impact, she seeks to contribute to the evolving landscape of law and justice.

Cover image credit 

Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.

Dr. Paloma Villarreal Suárez de Cepeda*

1. The Filandia Collection or Quimbaya Treasure

The Filandia Collection, also known as the Quimbaya Treasure, is an exceptional set of archaeological objects from pre-Hispanic tombs, discovered in 1891 near Filandia, Colombia by huaqueros or tomb looters. That same year, the Colombian government acquired the collection. The artifacts traveled to Spain in 1892 for exhibition during the commemoration of the Fourth Centenary of the Discovery of America. In May 1893, the Colombian government formally handed over the collection to Spain’s Queen Regent María Cristina in gratitude for her intervention in the border dispute between Colombia and Venezuela, which culminated in the adoption of the so-called, and still valid, Spanish Arbitration Award, or the Award in the Boundary Dispute Between the Republic of Colombia and the United States of Venezuela.

The 122 archaeological pieces that make up this extraordinary collection are currently preserved and exhibited in the Museum of America in Madrid.

2. Request by the Colombian Constitutional Court

In 2017, the Colombian Constitutional Court ruled that the act of handing over the Filandia  Collection must be examined based on the current Article 72 of the 1991 Colombian  Constitution rather than the international law in force at the time (the principle of contemporaneity, which refers to interpreting a legal act based on the law applicable at the time it was created). Article 72 classifies the collection as cultural heritage, rendering it inalienable, non-seizable, and imperishable (doctrine of “inter-temporal” law, which addresses the application of current law to past acts or events). The Court ordered the relevant authorities to undertake all necessary diplomatic, administrative, legal, and economic measures with Spain to achieve its repatriation.

From the perspective of current international law, the Court acknowledged that various dispute resolution mechanisms exist, such as bilateral agreements, good offices, mediation, and conciliation, among others. In its view, these diplomatic mechanisms offer the following advantages: first, the dispute can be resolved outside the framework of international treaties.  Second, any solution reached would be implemented in good faith.

After the current Spanish Government rejected an informal request for the collection’s return by the Quindío Academy of History in 2022, a formal restitution request was submitted to the Government of Spain on May 9, 2024. The Colombian Government sent formal letters to the Minister of Foreign Affairs, European Union, and Cooperation of Spain, as well as to the Minister of Culture, requesting the “recovery” of the Filandia Collection. On December 5, the Ministry of Cultures, Arts, and Knowledge, along with the Ministry of Foreign Affairs, announced the dispatch of a second letter.

3. Spanish Regulations

3.1 Domestic Law

Article 1 of the Spanish Historical Heritage Act, applicable throughout Spain’s national territory, defines Spanish historical heritage as the collection of immovable and movable property of artistic, historical, paleontological, archaeological, ethnographic, scientific, or technical interest. It also includes documentary and bibliographic heritage, archaeological sites and zones, as well as natural sites, gardens, and parks of artistic, historical, or anthropological value. The law aims to protect, enhance, and transmit this heritage to future generations.

Article 2.1 of the law states that, “without prejudice to the competencies of other public authorities, the essential duties and powers of the State Administration are to ensure the conservation of Spanish Historical Heritage and to promote its enrichment. The State will protect such assets from illicit exportation and looting.”

A key form of protecting exceptional heritage is its classification as a Cultural Interest Asset, commonly referred to as BIC (“Bien de Interés Cultural”). BIC status can be granted either ex lege or through an individualized administrative declaration via Royal Decree. Additionally, Article 27 establishes that collections held in Spanish museums are automatically considered BIC. The declaration of BIC status prohibits the exportation of such assets, except for temporary removals, typically linked to their exhibition in foreign museum institutions under loan agreements that promote the exchange of objects for purely cultural or educational purposes.

The only lawful possibility for the permanent removal of a BIC belonging to Spanish Historical Heritage from the national territory, thereby resulting in its definitive loss, is through an exchange (“permuta”). Article 34 of the Spanish Historical Heritage Act stipulates:

“The Government may negotiate with other states the exchange of state-owned movable assets belonging to Spanish Historical Heritage for others of at least equal value and historical significance. Approval will require a favorable report from the Royal Academies of History and Fine Arts of San Fernando and the Qualification, Valuation, and Export Board for Spanish Historical Heritage Assets.”

The only exchange carried out in accordance with the requirements of this article took place in 2010 under the government of José Luis Rodríguez Zapatero and the Spanish Socialist Workers’ Party. Spain handed over to Mexico a flag preserved in the Army Museum, which had been taken from the troops of Priest Hidalgo at the Calderón Bridge in 1811, and in return, received a Coronela flag from the King Ferdinand Battalion, preserved in the Chapultepec Museum, originating from the Battle of Tampico in 1829.

As a BIC, the Filandia Collection cannot currently be legally delivered to Colombia except through the aforementioned exchange mechanism.

3.2 International Law

Public International Law, so named by analogy to national law, is fundamentally different from its national counterpart, as it lacks a centralized authority, such as a state, to justify its use as a mechanism for conflict resolution through force.

Whether the agreements reached by states or other subjects of international law, such as international organizations like the United Nations, will be honored depends on the political will of each party. These parties assess the risks of not fulfilling commitments based on the criteria of expediency and the capacity to defend against possible reprisals from third states.

Agreements can take various forms, but only those treaties intended to produce legal effects— creating rights and obligations between the parties—are formally binding. Therefore, agreements or instruments that generate only political commitments, such as gentlemen’s agreements, joint communiqués, declarations of principles, or memoranda of understanding, are not considered international treaties.

In Spain, constitutional norms and the Law  25/2014 of November 27 on Treaties and Other International Agreements  govern the valid conclusion of such agreements. This law differentiates between international treaties, administrative international agreements, and non-regulatory international agreements. The latter is defined in Article 2(c) as:

“An international agreement that does not constitute a treaty or an administrative international agreement, concluded by the State, the Government, bodies, agencies, and entities of the General State Administration, Autonomous Communities and Cities of Ceuta and Melilla, Local Entities, public universities, and any other public-law entities with competence to do so.  These agreements contain declarations of intent or establish political, technical, or logistical commitments and do not constitute a source of international obligations nor are governed by international law.”

These are mere political commitments, declarations of intent, or non-legal coordination agreements. Such agreements are not subject to the procedures required for treaties and are not published in the Official State Gazette.

The current Spanish Minister of Culture, a career diplomat, has noted in the context of  Colombia’s claim that Spain is obliged to undertake a “decolonizing” review of its museums  based on agreements or best practices from the ICOM (“International Council of Museums”), the UNESCO World Conference on Cultural Policies and Sustainable Development (Mondiacult), and the 10th Ibero-American  Museum Meeting of 2022. The Minister has cited these frameworks to support the need for such a review.

The most recent Mondiacult summit took place in 2022 in Mexico and concluded with a  Declaration that makes no mention of “decolonization” or “colonial” issues. Likewise, the  Conference Report published by the Mexican Government does not use these terms.

The 10th Ibero-American Museum Meeting of 2022, held simultaneously with the Conference, resulted in a final Declaration in which the “representatives” of Ibero-American countries  proposed and promoted reflection and commitment to incorporating a “decolonial perspective in museum institutions and processes.” Other commitments included incorporating a culture of peace in museums, addressing gender perspectives, climate emergencies, combating racism and xenophobia, and emphasizing solidarity-based values of ancestral knowledge and practices.

However, the list of recommendations does not mention the “decolonization” of museums, but instead includes more general concepts, such as strengthening funding, combating illicit trafficking, promoting digitalization, enhancing the educational role of museums, and so on. In any case, the representatives who signed this Declaration primarily hold management rather than political positions, which means they lack the authority or legitimacy to assume obligations on behalf of their respective countries.

4. Conclusion

The Filandia Collection consists of relics—material remains produced by deceased individuals that are part of our present moment and tied directly to our history. Relics by themselves explain nothing; they always require a narrative to endow them with meaning. Relics and narratives, therefore, are the foundational materials that nourish history as an academic discipline, allowing people to study the actions of others long deceased while generating new narratives in the process.

Thus, it can be said that the international conflict surrounding these relics is closely tied to the history of both Spain and Colombia, but is necessarily political as well, given that history is a discipline capable of guiding the future of a political society. In the case of the Filandia Collection, Colombia seeks to “know itself” or “understand its identity” through relics from the pre-Columbian period, aiming to distance itself from its Hispanic heritage.

Although the collection was handed over in the late 19th century as a gesture of gratitude for Spain’s mediation in the conflict with Venezuela, the current Colombian government, along with Spain’s current Minister of Culture, seek to seize the opportunity offered by the decolonization movement. If this movement affects any European nation, it would not necessarily be limited to Spain but will likely extend to other nations such as Britain, France, the Netherlands, and Belgium.

Opposing this political trend, however, is the solid defense of Spanish legislation, which may or may not prove insurmountable depending on the current government’s ability to pass legislative amendments. Such amendments would replace the existing regulations that limit the government’s ability to act by requiring the approval of independent institutions in the case of an exchange. There is always the possibility that these amendments could aim to give the government free rein to act as it sees fit within a future “decolonization” framework.

In any case, the current Colombian government finds itself in the best position to secure the return of the Filandia collection from Spain. This opportunity arises not only from Colombia’s determined efforts to reclaim its “pre-Columbian heritage” as a means of redefining its national identity but also from Spain’s internal political fragmentation. Colombia’s strength contrasts sharply with Spain’s weakened position in reclaiming its own political losses, such as the spoils of Napoleonic looting from France.

The fate of the Filandia Collection highlights the complex relationship between history, politics, and philosophy, as the idea of identity is a philosophical idea. It emphasizes how relics, far from being static artifacts, are dynamic symbols that all nations mobilize to shape the present and future. The resolution of this conflict will serve as a case study in how the decolonization movement continues to challenge historical narratives and power balance.

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Dr. Paloma holds a PhD in Law and divides her teaching activity between training future lawyers and teaching the Master’s Degree in Legal Practice, specializing in Art Law. She is the lead lecturer for the Legal Aspects of Trade in Artistic and Collectible Goods course in the Master’s Degree in Art Markets, as well as the Master’s Degree in Archaeological and Museum Projects, both at UDIMA.

Cover image credit 

Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.

*Eleanor Gartstein

The Second World War saw the Nazis carry out the largest scale of art and cultural property plundering in history. It was not until fifty-three years after the war ended, however, that the first international agreement specifically addressing Nazi-era restitution was realized. The Washington Conference on Holocaust Era Assets was held in 1998, resulting in eleven agreed upon Principles of Nazi-Confiscated Art. These principles have since served as the guiding global framework for ownership disputes arising from the Nazi-era.

The decades-long delay came alongside 1998’s Nazi War Crimes Disclosure Act, implemented in response to strong calls for the declassification of government records concerning Nazi activity. As the public gained access to over 8.5 million pages of records, the “largest congressionally mandated, single-subject declassification effort in history,” many victims and heirs gained the necessary documentation to move forward with their claims.

The principal aim of the Washington Principles is the pursuit of “just and fair” solutions. This key phrase, which appears twice in the principles, unfortunately suffers from significant ambiguity. Principle 8 recognizes this, conceding that each “just and fair” solution can vary according to specific case circumstances. This is where Principle 11 refers to the need for a designated forum to assist in addressing these variations, encouraging the development of alternative dispute resolution mechanisms at a national level.

Given the Washington Principles’ non-binding status, out of the forty-four countries in attendance at the Washington Conference, only five have since made substantive moves toward effectuating Principle 11. The five nations with existing designated commissions are Austria, France, Germany, the Netherlands, and the United Kingdom.

The Existing Commissions 

Austria was the first country to make concerted efforts towards Nazi-era restitution, establishing the Commission for Provenance Research in February of 1998, even prior to the Washington Principles, to investigate their public federal collections. The day after the Washington Conference concluded, Austria also established their Art Restitution Advisory Board (the Beirat). The Commission and Beirat now work closely together, forwarding restitution recommendations to the Federal Minister for a final decision. The Federal Minister is empowered to do so under the Art Restitution Act, which was also enacted in 1998 to authorize the return of objects.

Not long after, in September of 1999, France created the Commission for the Compensation of Victims of Spoliation That Have Occurred Due to the Anti-Semitic Legislation in Force During the Occupation (CIVS). The CIVS, now called the Commission for the Restitution of Property and the Compensation of Victims of Anti-Semitic Spoliations, has expanded several times since. Originally bound to cases committed in France from 1940 to 1944, the CIVS is now competent to advise on anti-Semitic spoliation in any country influenced by Nazi Germany between 1933 and 1945, if that cultural property now resides in a French public collection. In February of 2024, a new law went into force finally enabling restitution from French national holding institutions. This was previously barred by the principle of inalienability, which prohibits the deaccessioning of cultural property held in the public domain.

The United Kingdom established its Spoliation Advisory Panel (SAP) in 2000 to hear claims on cultural property lost from 1933 to 1945, now held in a national collection. Given the United Kingdom was never occupied by the Third Reich, cases tend to focus on problematic provenance for pieces that were later imported to the United Kingdom. Even with the SAP’s establishment, the United Kingdom was not able to actually effectuate restitution until 2009. The Holocaust (Return of Cultural Objects) Act was passed that year to confer power on museums to deaccession items on certain grounds related to the Nazi era. The law was originally valid for 10 years only, but a 2019 amendment removed the ten-year limit to enable future claims. Recent efforts also show progressive signs of reducing the United Kingdom’s otherwise steadfast barriers to removing property from national collections.

The Netherlands took action in 2001 to create its Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War  (Restitutions Committee). In cases involving artwork held by the Dutch state, the Restitutions Committee presents non-binding advice to the Minister of Education, Culture, and Science. Alternatively, for independently held artwork, the commission issues binding advice between private parties who choose to go through the panel as an alternative dispute mechanism.

Until this year, Germany’s Beratende Kommission had from its creation in 2003 operated under an applied theory of subsidiarity, which encourages decisions be made at a local level rather than by a central authority. This meant the commission would issue non-binding recommendations only where a claimant and museum first attempted to reach a bilateral settlement, failed to achieve that settlement, and then jointly agreed to submit their case. This limitation’s practical effect led to most disputes never being heard at all. However, in January, Germany approved a major reform in recognition of this, introducing a new tribunal, the Arbitration Court for Nazi-Looted Property. The new system will involve a binding, unilaterally accessible arbitration process.

Regional Developments

This move by Germany is representative of a larger, continuous push to advance restitution measures. The sheer creation of commissions by Austria, France, Germany, the Netherlands, and the United Kingdom all demonstrate a sincere effort to carry out the aims put forth at the Washington Conference. Given civil law jurisdictions in Europe tend to afford protection to good-faith buyers in cases of stolen property, the presence of commissions can be especially impactful to ultimate ownership outcomes. Were it not for the establishment of these commissions, it is likely that most claims would be otherwise dismissed on statute of limitations grounds.

While national-level forums bring great value, claims involving multiple nations can encounter more friction when faced with structural inconsistencies. In efforts to facilitate greater cross-border harmony, the European states reconvened at the 2017 London Conference, titled “70 Years and Counting: The Final Opportunity?” The given title stressed that even decades later, the response to Holocaust Era Assets remained inadequate. Accordingly, this Conference was predicated on the idea that it “not become simply another set of lukewarm promises.” While the 2017 London Conference acknowledged the structural differences between the committees, cooperative barriers have persisted.

In 2019, the five countries established the Network of European Restitution Committees on Nazi-Looted Art, which aims to link the existing commissions to enable information sharing, joint action filings, and align endeavors. In the same year, a guide was published to aid both researchers and claimants in understanding the workings, and differences, of each commission. The Network maintains that “fair and just solutions for the spoliation of artwork can only be made effectively at international level: the mobility of looted cultural property adds to the geographic dispersal of victims.”

International Developments

This persisting need to combine efforts on a more global scale has prompted multiple international follow-ups to the Washington Conference. The first, in 2009, produced the Terezin Declaration on Holocaust Era Assets and Related Issues, which recognizes that a substantial portion of property has yet to be restituted or compensated and explicitly urges those nations that have not already done so to establish mechanisms that can better assist claimants.

Additionally, the Terezin Declaration asserts that restitution or compensation should be “expeditious, simple, accessible, transparent, and neither burdensome nor costly to the individual claimant.” The much more recent 2024 Best Practices for the Washington Principles on Nazi-Confiscated Art, procured fifteen years after Terezin, continues to stress the need for appropriate arbitration mechanisms.

“Countries are encouraged to create an independent expert body whose composition may be the states’ responsibility, to which unilateral access is available that can adjudicate cases of art and cultural property and arrive at or recommend a binding or non-binding decision (for example, the use of commissions in Austria, France, Germany, Netherlands, and the United Kingdom). Such bodies should have balanced, expert, and representative membership. Use of alternative resolution mechanisms is encouraged to avoid litigation.”

While the Terezin Declaration and the Best Practices reflect continued, good-faith efforts, they also demonstrate that progress has been slow. Even so, the revisitations have instituted change and kept Nazi-era restitution at the forefront of conversations. For example, Germany’s shift this year to allow for unilateral appeals responds to the Best Practice’s call for claimants to have access to panels, even if the current owner does not consent. This illustrates major framework adjustments remain not only ongoing, but achievable.

Conclusion 

With this year marking the 80-year anniversary since the end of World War II, the issue of Nazi-era restitution has received varying degrees of attention globally. In the many places where victims and heirs are restricted to seeking restitution through the courts, contested ownership is unlikely to result in the aim of “just and fair” solutions as set in 1998. The prospects of existing commission frameworks can serve as a guide for the creation of new panels in countries that have yet to participate. Their limitations can also serve as a lesson into what should be avoided and amended. Irrespectively, the global displacement of art and cultural property resulting from the Nazi-era demands collaborative efforts across borders.

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* Eleanor Gartstein is a second-year law student at the University of California, Berkeley School of Law. She holds a B.B.A. in International Business and a B.A. in Art History from the University of Texas at Austin. Her academic interests include international cultural heritage policy, art market regulations, restitution efforts, and museum issues.

Cover image credit 

Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.

Daniel Ricardo Quiroga-Villamarín*

In the collective imagination of international lawyers and scholars of international affairs alike, perhaps the most vivid image we have of Pablo Picasso’s “Guernica” might be of its absence. While a tapestry reproduction of this famous artwork has adorned the entrance to the Chamber of the United Nations Security Council since September 13 1985, it was briefly “covered up” in February 2003. The reason was that Colin L. Powell, then Secretary of State of the U.S., delivered an infamous speech before the United Nations Security Council on Iraq’s failure to disarm —leading, eventually, to the so-called Second Gulf War later the same year. Instead, a blue curtain with the emblem of the United Nations was conspicuously hung. And, from a specific angle, TV cameras were able to capture a dismembered “horse’s hindquarters […] just above the face of the speaker.” While there is no public record of the decision-making behind this aesthetical choice, journalists have long speculated that it “would be too harrowing, too politically pointed if Colin Powell were to be shown defending war in front of this great denunciation of war” (see also here). Be that as it may, this minor incident bears witness to the entanglements of art, war, and law in our unending quest to create a just international order.

This quest, of course, began long before the establishment of the United Nations in 1945 —and even perhaps of its immediate predecessor institution, the League of Nations (thereafter, the League), in the wake of the Paris Peace Conference of 1919-20. With this in mind, in this short intervention, I trace the connections between the Spanish Civil War of 1936 (the conflict which originally inspired Picasso’s work) and the League, all the way to the current challenges our liberal rules-based international order (with the United Nations as its cornerstone) is facing, using the many lives of the “Guernica” as a running thread. For the horrors that once inspired Picasso’s century continue to haunt our times —in fact, they seem to be returning with a vengeance on the world stage.

The entrance to the Chamber of the League’s Council (which, in many ways, worked as the inspiration of our contemporary Security Council) also has a connection with the Spanish polity. As I’ve explained with more detail elsewhere, all its interior décor had been donated by the Second Spanish Republic in the mid-1930s. This included the Latin-inscribed heavy bronze doors that guarded the entrance to the League. But the centerpiece of the Spanish donation had been the mural “The Lesson of Salamanca,” painted by the Spanish —or Catalan, depending on who you ask!— artist José María Sert y Badia between 1934 and 1936. This image was affixed to the Chamber’s abode, and it towered over the delegates who sat in its semicircular table. To accompany it, Sert also created a series of smaller murals for the walls entitled “Hope and Justice,” “Social Progress and the Law,” “The Vanquished and the Victors,” and “Peace Revived and Peace Dead.” The result was what in German is known as a Gesamtkunstwerk: a “total work of art”: an overarching aesthetical structure that gave the Council’s Chamber a coherent identity. It was Sert’s, and Spain’s, homage to world peace. And yet, by the time it was actually installed in the League’s Palais des Nations (“Palace of Nations”) building in Geneva, Switzerland, it had become a symbol of war —and, eventually, of the League’s own demise.

In July 1936, a military uprising brought the crisis-ridden Second Republic to the brink of catastrophe —taking, along with it, the “Great Experiment” that was the early League of Nations. To the embarrassment of League Officials, after a period of indecision, Sert decided to pledge his allegiance to the Nationalist camp in the civil war. This meant that, by the time the Council met for the first time in its new Chamber on 2 October 1936, the painter of their most hallowed hall had open Fascist sympathies. It was in this very Chamber where the Republican Government made its case, unsuccessfully, for international assistance. That same month, the Italian Fascists invaded Ethiopia, a fellow member of the League and nominally equal state. By 1937, winds of war were once sweeping the European continent —eventually leading to the collapse of the international order centered on the League and the eruption of what we now call World War II. The League’s embarrassment over having Fascist artwork in the middle of a great war against it was shared also by the Rockefeller family. The lobby of their “flagship 30 Rockefeller” Plaza building also harbored Sert’s massive mural “American Progress.” The fact that this occurred only after they had sacked the original artist, the Mexican muralist Diego Rivera, because he had included a prominent image of Lenin in his mural “Man at the Crossroads” is almost a joke that tells itself.

The aesthetical anti-Fascist war effort found an unlikely ally in Sert’s nephew: the Catalan (or Spanish, once again) architect, Josep Lluís Sert I López (see, generally, here). While the younger Sert had long admired the work of his uncle, he had thrown his weight behind the Republican cause. If the Spanish Civil War was a feud between brothers, as all civil wars are, then now the time had come for the two Serts to face their own family quarrel in the battle for the soul of modern Spanish art. They did so in the context of the Paris World Exposition of 1937, which had as its motto “Art and Technology in Modern Life.” Despite the ravages of the civil war, the legitimate government of Spain considered that it was “indispensable” to participate to garner international support in favor of the Republican cause. Their pavilion was designed by the younger Sert (along with Joan Miró and Alexander Calder) and it was crowned by Picasso’s “Guernica.” It was here where the painting first gathered international attention not only as an abstract condemnation of war but as a cri du cœur related to a very concrete ongoing conflagration. The exhibition-goers first saw it perhaps “did not understand that democracy on the whole continent was at stake.” It was not only a condemnation of an ongoing conflict, but a warning of a global war that already loomed on the horizon.

Given that the Fascist uprising had not —yet— won the civil war, they could not claim a place in the Expo’s Pavilions of Nations. But they found a willing sponsor in the Vatican City, a state that allowed its pavilion to act as a proxy for “Nationalist Spain.” The older Sert adorned this hall with a new painting called “the Intercession of Saint Teresa of Jesus in the Spanish Civil War” —as if there were any lingering doubts as to whether his true loyalties lied. While he collaborated with the Republican authorities to evacuate the “cultural treasures of Spain” and protect them from the ravages of the war, he did so because he was more concerned about left-wing iconoclasm than Fascist purges (see further here). His newest paintings deployed the characteristically style (use of massive figures and different shadows of gold) that he once used in the Rockefeller Center in New York City and in the League’s Council in Geneva, but now to wage the Spanish Civil War by other means. By 1939, the Republic was on the verge of military defeat as this conflict escalated into a wider global war. And Picasso’s “Guernica,” like many of Spain’s other human and more-than-human cultural treasures, found itself in exile. In particular, this painting was loaned by the artist by the Museum of Modern Art in New York City until “democratic freedoms” were reestablished in Spain. After the death of the former dictator in 1975, the original “Guernica” finally returned to Madrid in 1981.

This allowed, perhaps, the younger Sert to have the last word in this unfinished argument with his uncle. In 1955, Nelson A. Rockefeller commissioned a tapestry replica of Picasso’s work which he and his family would loan to the United Nations in 1985. Ever since (ignoring minor cover-ups like the one that occurred during Powell’s speech and a period of cleaning and preservation in 2021-2022), this central part of the younger’s Sert homage to the Republic has guarded the entrance to the United Nations Security Council —the most important organ of a new international order created in 1945 in a decisively “American way.” This is only fitting, considering that the younger Sert followed the “Guernica” into exile and had a prolific career in the U.S. —serving as Dean of Harvard Graduate School of Design between 1953-69 and becoming one of the most important figures in modernist architecture and urban planning. In exile, he and many other former Spanish Republican luminaries found a way to carry on with their lives despite all that was lost on the battlefield.

For that reason, it is not surprising that “Guernica” itself went onwards to live many other lives beyond those lost when a coalition of Fascists planes bombed the Basque country in April 1937. It has become a symbol of peace —and an indictment of the horrors of war— with echoes that go far beyond its Spanish (or Basque) origins. Indeed, in the painfully contemporary wars raging in Eastern Europe and Western Asia, the motif of the “Guernica” has been purposefully mobilized by victims to once again garner the world’s attention (see, for instance, here in relation to Ukraine, here with regard to Israel, and here in respect of Gaza). Its gaze still haunts international lawyers and foreign affairs experts when they pour into the United Nations Security Council Chamber to debate and deliberate about international law’s role in times of war and peace. In this intervention, I have tried to hold the painting’s gaze, looking deep in the abyss of its history. For its original meaning, and its many subsequent lives, offers a cautionary lesson about the entanglement of art, law, and war. We can only hope that those within the United Nations today do not forget that —in fact— the events that inspired the “Guernica” proved to be the straw that broke the camel’s back for the League of Nations. Let us work together so that its contemporary resonances do not prove to be the death knell of our liberal international order.

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*Daniel Ricardo Quiroga-Villamarín, Scholar in Residence, Decolonial Futures Research Priority Area — University of Amsterdam.

Contact emails: [email protected] & [email protected]

ORCID: 0000-0003-4294-4379

Cover image credit 

Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.

Yelena Ambartsumian* and Maria T. Cannon**

The Terms of Service of many generative artificial intelligence (“generative AI”) tools, particularly those that produce illustrations and images, require that the user grant the AI tool an “irrevocable copyright license” to both the inputs and the outputs. While the content that the user provides to the generative AI tool (the input), and the data sets on which the generative AI tool was trained (training data) may consist of copyrighted material, the same is not true for the output—for example, the image that the generative AI tool generates in response to a user’s prompt. For such content to be copyrightable, most jurisdictions, including the United States, require some level of human creativity or originality in the selection and/or modification of the AI-generated content. That means AI-generated work, alone—in response to a human user’s prompt—is not afforded copyright protection.

In its 2023 Rule on Works Containing Material Generated by Artificial Intelligence, the U.S. Copyright Office stated copyright protects “only material that is the product of human creativity.” In late January 2025, the U.S. Copyright Office published its highly anticipated report on the copyrightability of works created using generative AI. Far from signaling a departure, however, the Copyright Office maintains that there is no need for changes to legislation and that existing law can resolve questions of copyrightability and AI. While determinations are made on a case–by–case basis, the Copyright Office clarified that most prompt-engineering will not suffice: this is because, for copyrightability, a human must determine the elements of creative expression, and, currently, “AI systems are unpredictable” given that the same prompt can create various outputs.

The U.S. approach is similar to that of many but not all other jurisdictions. We provide below a comparative analysis on the copyright laws of the United States, EU, UK, China, and Japan. In short, while all jurisdictions require some level of human involvement, one seeking to copyright AI-generated work would have the highest chances of success in China or Japan. When comparing different approaches to copyright protection, it is important to remember that the rights and ownership of copyright matter most when there is an alleged infringement. This practical concern—coupled with the United States’ policy interest in maintaining a monopoly on producing and exporting creative and entertainment goods—means it soon may be time to reevaluate U.S. copyright law’s human authorship requirement, particularly as AI technologies rapidly develop.

United States

While the Copyright Office has granted registration to hundreds of works that incorporated AI outputs, where the applicant properly disclaimed the AI-generated content, it is not possible to copyright a work generated solely by AI today. As the Copyright Office recently explained, “prompts alone do not provide sufficient human control to make users of an AI system the authors of the output.” Copyright does not protect ideas but rather the creative expression of those ideas. Accordingly, as the Copyright Office reasoned, “prompts alone do not provide sufficient human control to make users of an AI system the authors of the output.” For copyrightability, some level of originality is a prerequisite, though the “level of creativity is extremely low,” and not to be confused with “sweat of the brow” or industrious collection. See Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).

The hurdle to copyrightability stems from the “authorship” requirement in U.S. copyright law, found in the Constitution and the Copyright Act, and as interpreted by the courts. The Constitution gives Congress the power to promote the useful arts, by giving “authors” the exclusive right to their “writings” (Article I, Section 8, Clause 8). The Copyright Act, first enacted in 1790, thus protects “original works of authorship” (17 U.S.C. § 102(a)). The Copyright Office views this authorship requirement as “[m]ost fundamentally . . . exclud[ing] non-humans.”

But AI is not the first technology that has required us to re-think authorship and human involvement. While lower court cases over a century ago often sought to limit that which was protected, two early and important Supreme Court cases evidenced an expansive approach. See Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) (Miller, J.) (holding photograph of Oscar Wilde a “writing” and photographer an “author”); Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903) (Holmes, J.; Harlan, McKenna, J., dissenting) (holding posters advertising a circus are copyrightable).

In Burrow-Giles Lithographic Co., the Supreme Court reasoned that while some photographs result from purely mechanical actions and thus lack authorship, other photographs are the product of an author’s “intellectual conceptions” and design. The Copyright Office has since relied on Burrow-Giles and subsequent case law to imbue humanity into the authorship requirement for copyright registration. In its 1965 Annual Report, the Copyright Office explained “[t]he crucial question appears to be whether the ‘work’ is basically one of human authorship, with the computer merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.”

Accordingly, an artist that inserts a prompt into a generative AI model and receives a written, visual, or musical output in response is unlikely to have created a work capable of copyright protection. The Copyright Office would view this work as lacking “any creative contribution from a human actor.” (Although, in the United States, copyright is automatically secured upon creation of the work, registration is a prerequisite to filing suit.) But an artist that produces a work containing AI-generated material, which also required human involvement (by editing or modifying the output, combining the AI-generated elements with other elements, etc.) may have created an original work of authorship. Importantly, while the overall work may be protected (for example, a comic book, with its text and arrangement of elements), the individual AI-generated images within that work likely would not be, for now.

European Union 

While no EU-wide unitary copyright exists, works receive protection according to the laws of the respective EU Member State. Currently, there is no prohibition on registering  works made using AI as a tool (AI-assisted works). In fact, the recent EU AI Act does not directly address the question of registration of AI-assisted works.

On the subject of copyrightability of AI-generated works, there is little case law, apart from Infopaq International A/S v. Danske Dagblades Forening (Case C-5/08), in which the Court of Justice of the European Union (“CJEU”) held that copyright protection will only be available for works that are “the expression of the intellectual creation of their author.” What does this mean for the outputs of generative AI? In Infopaq, the CJEU suggests EU Member States should figure it out themselves (“[I]t is for the national court to make this determination”). Because the CJEU did not provide an exact formula, the States have some flexibility in interpreting and applying the law within their respective national frameworks. In a December 2024 policy questionnaire, the general view of the Member States was that AI-generated content could be eligible for copyright protection “only if the human input in their creative process was significant” (emphasis in original).

United Kingdom
The UK’s copyright laws have been shaped by EU harmonization, due to the UK’s nearly fifty-year membership in the EU, until 2020. Therefore, although early U.S. copyright law is rooted in the Statute of Anne (8 Anne c. 19, 1710), we see several departures between the American and UK systems today.

Per Section 1(1)(a) of the UK’s Copyright, Designs and Patents Act (1988) (CDPA), a literary, dramatic, musical, or artistic work must be an “original” authorial work. This originality requirement is interpreted in accordance with the relevant EU case law, including Infopaq and subsequent decisions, which hold originality is the “author’s own intellectual creation” and requires the author to make choices that “stamp the work created with their personal touch.” CDPA Sec. 9(1) also recognizes a separate category of works called “entrepreneurial works,” which include films, sound recordings and broadcasts; these works do not require originality to qualify for copyright protection but the term for their protection is shorter.

All of this said, the CDPA explicitly speaks to computer-generated works. Section 9(3) provides that for “literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.” In 2021, after seeking public comment on whether computer-generated works should continue to be protected, the UK Intellectual Property Office elected to keep the law in place. Section 9(3) does not specify the originality required for computer-generated works. Future case law will hopefully resolve whether Section 9(3) simply designates the author—or owner—for such works that are entirely AI-generated and thus lack a traditional human author. (In that case, the person prompting the general-purpose AI tool simply would be the author.) Or, the courts may require the same originality as for other authorial works—“the author’s own intellectual creation”—which would be difficult to evaluate, particularly in the case of an entirely AI-generated work.

China

The Copyright Law of the People’s Republic of China approaches authorship through the lens of ownership, not originality. Historically, China’s Copyright Law lacked an “originality” requirement, to avoid confusion with the patent law requirement of “novelty” and “inventive step.” In 2002, the Regulations for the Implementation of the Copyright Law of the People’s Republic of China (amended 2013) introduced the concept of “originality” in Article 2 but with little guidance. Originality is interpreted through case law, with divergent interpretations by the courts but generally requiring that works be original, reflect intellectual achievement, and embody a concept of originality, among other factors—sometimes characterized as a “‘sweat of the brow’ plus” standard (effort and some creativity).

In Li v. Liu, (2023) Jing 0491 Min Chu No. 11279 (2023), the Beijing Internet Court unlocked the path for artists in China to obtain copyright protections for outputs of generative AI models. Critically, the Court relied on Article 3 of the Copyright Law to categorize an AI-generated image as a “wor[k] of fine art” and thus capable of copyright protection.

Li v. Liu involved a plaintiff who created a picture of a woman in springtime using an open source program called Stable Diffusion—a diffusion model which is trained on noising and denoising images, much like a human artist. The plaintiff exercised numerous choices in wording and phrasing when writing the prompt (including negative phrases, such as no “bad hands, text, error, missing fingers, extra digits”). He also adjusted the parameters to fine-tune the output. After the plaintiff posted the final image on social media, the defendant removed the watermark and published the same image in an article, on an alternate online platform, without obtaining permission or a license. The plaintiff sued for copyright infringement.

After determining that AI-generated images are fine art, the Beijing Internet Court focused on examining the work’s originality. It analyzed factors such as the specificity of the prompts, the actual descriptions of elements of the finished image that could be generated, and the unique formula and method the plaintiff applied to obtain the final result. Here, the plaintiff demonstrated a trial–and–error creative process well known to all artists. The Court found that the cumulative impact of the plaintiff’s choices caused the contributions to meet the threshold of “original,” as applied to creative works.

In the end, the Beijing Internet Court ruled in favor of the plaintiff and his AI-generated work, but with the following caveat: AI-generated works will only meet the qualifications for copyright registration in “appropriate” (read: not all) cases, and whether or not a work meets this threshold will be determined case–by–case. Despite the guardrails, this decision gives artists greater freedom to use generative AI to create copyrightable works in China than in the United States (and perhaps even in the EU and UK).

Japan

Japan amended its Copyright Act in 2018 in response to the development of new technologies. Notably, Article 30-4 of the Act gives broad rights to use copyrighted material for information analysis, including to train AI models for commercial use—so long as the use of the copyrighted works does not unreasonably prejudice the interests of the copyright owner. In May 2024, the Copyright Subdivision of the Cultural Council published guidelines on AI and copyright. The Copyright Subdivision noted that copyrightability of AI-generated material rests on whether the human author has provided “creative contributions that surpass mere effort.” Examples include the amount and specificity of the instructions or inputs, the number of generation attempts, and the selection from multiple output materials.

Conclusion

Regardless of the jurisdiction, most courts seem to grapple with the human’s role in the AI-generated output, rejecting that a simple prompt is enough to constitute authorship or originality. We may need to rethink human authorship, as the AI Revolution changes the paradigm of how humans can express their creativity. By encoding neural network patterns and decision-making processes in such a way that closely mimics human thought, AI-powered technology can create new categories of creative goods—which, as we saw in Li v. Liu, also require protection against theft, copying, and unfair competition (just as the photograph in Burrow-Giles and the circus poster in Bleistein).

Apart from numerous examples of technology assisting artists in creating new possibilities of creative expression and copyrightable works (e.g., the camera, Photoshop, or Adobe Illustrator), there is another precedent for expanding our notion of authorship: conceptual art. As in the dispute between Maurizio Cattelan and Daniel Druet—the wax sculptor and artist who painstakingly executed some of Cattelan’s most famous works—we accept that Cattelan is the author, based on his instructions (the prompt) to Druet. Similarly, putting aside the U.S. doctrine of “works made for hire,” we also accept that Jeff Koons is the artist, and not his dozens of studio assistants—many of whom are sophisticated designers and engineers (and some of which are robots). Today’s copyright law is able to ignore that the studio assistant inevitably leaves her touch, even when following the artist’s instructions (or prompt). Why is AI treated differently?

Ultimately, the copyrightability of AI-generated outputs will rest not on the law catching up to current events but on the technologies’ further development necessitating change. Advances in prompt engineering (i.e., adaptive prompting, human-in-the-loop) will inevitably allow humans to have more control over the creative expression produced by the AI tool. Soon enough, we will be prompted to rethink the human’s participation in creative expression and whether (and how) we want to incentivize and protect such creation.

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*Yelena Ambartsumian is the Founder of AMBART LAW, a New York City law firm offering outside general counsel services to startups, with a focus on data privacy, AI counseling, and intellectual property. Prior to founding AMBART LAW, Yelena founded the art-tech startup Origen, a collection management and analytics platform for emerging contemporary art. Yelena is a certified Information Privacy Professional (CIPP/US) by the International Association of Privacy Professionals (IAAP), and a co-chair of IAPP’s New York KnowledgeNet chapter. She has also worked as General Counsel at an engineering consulting firm, a Senior Associate at a premier global law firm handling complex commercial litigation and regulatory investigations, and Of Counsel at an art and cultural heritage law boutique. Yelena is a frequent contributor to the leading arts magazine Hyperallergic, on topics including copyright and cultural heritage destruction.

**Maria T. Cannon is an Associate at AMBART LAW and is a certified Artificial Intelligence Governance Professional (AIGP) by the International Association of Privacy Professionals. Maria frequently writes on the intersection of art, law, and technology and has been published by the American Bar Association, and the New York State Bar Entertainment, Arts and Sports Law Section (EASL), among others. She is an attorney admitted in New York State, and prior to her work as an associate in AI counseling and data privacy, she worked as a student extern in the Legislative Drafting Division of the North Carolina General Assembly.

 

Cover image credit 

Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.

Chad Patrick Osorio*

I. Introduction

The intersection of art and wildlife conservation raises critical questions about the role of cultural expression in addressing environmental challenges. Art has historically depicted nature and human-wildlife interaction, illustrating the connection between humans and the natural world. It has also, however, inadvertently contributed to the illegal wildlife trade (IWT), particularly when art has increased the social acceptability and desirability of owning and hunting wildlife. Examples include Leonardo da Vinci’s The Lady with an Ermine (c. 1489–1490), Peter Paul Ruben’s The Tiger Hunt (c. 1615–1616), and Jacques-Laurent Agasse’s The Nubian Giraffe (c. 1767–1849). Additionally, wildlife products have been used in the creation of art, including plant and animal dyes for paintings and textiles, as well as wood, bone, and horns for ornamentation, trinkets, and sculptures. Both examples are evident in the artistic traditions of Southeast Asia.

     

(Images are provided by the author)

Southeast Asian art, both past and present, richly incorporates depictions of and references to wildlife. Examples of this include illustrations from Thai horoscope manuals in the 1800s, an early deity carving from ivory, and an antique Balinese rosewood sculpture of a mythical beast, among many others. These artworks resonate with the region, which is home to some of the world’s most biodiverse ecosystems and harbors iconic species like tigers, elephants, and hornbills. These species are not only ecologically significant but also hold deep cultural value. However, this rich biodiversity is under severe threat from the illegal wildlife trade. Despite stringent international conventions such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), IWT remains a multi-billion-dollar industry and one of the most lucrative illegal activities in the world. IWT presents numerous challenges, with wide-ranging impacts that affect both the natural environment and human society. Its consequences are significant and multifaceted, spanning environmental, economic, political, and social dimensions.

Southeast Asian countries serve as crucial source, transit, and destination points for wildlife trafficking. Due to their highly porous borders, rapidly growing middle class, and deeply entrenched cultural practices, these countries face unique challenges in addressing this issue. One contributing factor to the underground wildlife market is that derivative products of flora and fauna are trafficked for use in traditional and contemporary works of art. In this article, we seek to shift this perspective and instead explore how international legal frameworks protecting art can be leveraged to protect wildlife within the regional jurisdiction of the Member States of the Association of Southeast Asian Nations (ASEAN).

The article is organized as follows: in Part II, we discuss specific cases of some of the most trafficked wildlife in relation to art, including elephant ivory, hornbill casques, hawksbill tortoiseshells, and rosewood and agarwood timber. We outline the current legal conservation framework in the region, giving examples under both treaty and domestic law in Part III. In Part IV, we propose how existing legal protection for art and heritage within the ASEAN can contribute to wildlife protection, capitalizing on market regulation for sustainability. We conclude, in Part V, with an ASEAN-led sustainable art certification program seeking to increase the joint value of nature in ASEAN art.

II. Art and the Illegal Wildlife Trade

The art market—both legal and illicit—has a long history of using wildlife products. Items such as ivory sculptures, mother-of-pearl inlays, and exotic leather crafts are prized for their aesthetic and cultural value. In Southeast Asia, traditional and religious art often incorporates these materials, creating tension between cultural preservation and wildlife conservation.

One of the most glaring examples of art driving wildlife exploitation is the ivory trade. Ivory, derived from the tusks of elephants, has been used for centuries in carving intricate sculptures, religious artifacts, and decorative items. Ivory carvings are highly sought after for their cultural and aesthetic value, particularly in the historical production of religious figurines. Despite the ban on the international trade of ivory, demand persists, exhibited by high ivory prices in Asia. Poachers and traffickers exploit legal loopholes, smuggling ivory to and from Southeast Asia, where artisans transform them into works of art. This demand contributes significantly to the decline of elephant populations, particularly the Asian elephant (Elephas maximus spp.), which is listed as endangered by the International Union for Conservation of Nature.

Another example is the use of helmeted hornbill (Rhinoplax vigil) casques in jewelry and ornamental art. Known as “red ivory,” the solid keratin casques are carved into intricate designs that are highly valued in East and Southeast Asia. The helmeted hornbill, native to Brunei, Indonesia, Malaysia, Myanmar, and Thailand, faces critical endangerment due to poaching driven by demand for its casques. The species plays a vital ecological role as a seed disperser, and its loss has cascading effects on forest ecosystems. Despite international protections, the helmeted hornbill continues to be targeted, with traffickers smuggling casques through clandestine networks.

The hawksbill turtle (Eretmochelys imbricata), classified as critically endangered, is another species victimized by the art market. Its tortoiseshell is used to craft jewelry, combs, and decorative items. In the Philippines, tortoiseshell crafts have a long tradition, particularly in coastal communities. The exploitation of hawksbill turtles for art not only threatens their survival but also disrupts marine ecosystems, where they play a role in maintaining coral reef health. The continued demand for tortoiseshells highlights the need for stronger enforcement.

Plants also play a significant role in the illegal trade linked to art. Rosewood (Dalbergia spp.), prized for its deep red hue and durability, is commonly used in furniture and carvings. Rosewood smuggling is a pervasive issue in countries like Cambodia, Laos, and Vietnam, where forests are stripped of this valuable resource to meet international demand. The exploitation of rosewood for luxury goods has led to deforestation, loss of biodiversity, and illegal logging operations that endanger local communities. Similarly, agarwood (Aquilaria spp.), used in perfumes, incense, and intricate carvings, is overharvested due to its high market value. Native to several ASEAN countries, agarwood trees are now critically endangered in many areas, further threatening forest ecosystems.

These are just some examples of wild flora and fauna, from land, sea, and air, trafficked within Southeast Asia to serve the global demand for art.

III. Legal Frameworks Protecting Wildlife in ASEAN

There are existing legal protections for wildlife in Southeast Asia, led foremost by ASEAN—a regional intergovernmental organization that promotes political and economic cooperation among ten Southeast Asian countries. Founded on August 8, 1967, through the signing of the ASEAN Declaration (Bangkok Declaration) by Indonesia, Malaysia, the Philippines, Singapore, and Thailand, ASEAN has since grown to include Brunei Darussalam (1984), Vietnam (1995), Laos (1997), Myanmar (1997), and Cambodia (1999). ASEAN’s core objectives are to foster regional peace and stability, stimulate economic growth and prosperity, and enhance cooperation among its Member States.

ASEAN places much emphasis on principles such as mutual respect, non-interference, consensus-building, and collaboration. The regional body seeks to ensure that Member States acknowledge each other’s sovereignty and refrain from actions that could undermine national interests or be perceived as external intervention in domestic affairs. Consensus-building is equally central to ASEAN’s decision-making process, requiring unanimous agreement among its members, which ASEAN implements through regular meetings and consultations. Through this cooperative political-legal framework, the regional organization has developed various policies and programs to promote interstate cooperation in trade and investment, regional security, social and cultural matters, and sustainable development. Among its notable accomplishments is the establishment of the ASEAN Economic Community (AEC), which seeks to create a unified market and production base, enabling the free movement of goods, services, investments, and skilled labor within the region. As a result of these efforts, as of 2022, ASEAN has emerged as the fifth-largest economy globally.

ASEAN countries are signatories to various international conventions aimed at curbing illegal wildlife trade. The most significant is CITES, which regulates the international trade of endangered species. This is supported by regional initiatives like the ASEAN Wildlife Enforcement Network (ASEAN-WEN), which facilitates cooperation among Member States to combat wildlife trafficking, providing a platform for sharing intelligence and best practices among enforcement agencies. Similarly, the ASEAN Working Group on CITES and Wildlife Enforcement aligns Member States with CITES requirements and enhances enforcement capabilities.

Each ASEAN country has its own set of laws addressing wildlife conservation and illegal trade. For instance, Thailand’s Wildlife Conservation and Protection Act (2019) criminalizes the possession and trade of protected species and their derivatives. Indonesia’s Law on Conservation of Biological Natural Resources and their Ecosystems (1990), recently updated, includes provisions for wildlife trafficking, imposing penalties for trading endangered species. In the Philippines, the Wildlife Resources Conservation and Protection Act (2001) prohibits the exploitation of endangered species for commercial purposes. Despite these frameworks, enforcement challenges persist, including corruption, lack of resources, and inadequate cross-border collaboration. Below is the table of domestic legislation in support of wildlife protection in the ASEAN region.

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Table 1. CITES-related Laws in ASEAN Countries

IV. Exploring Legal Synergy between Art and Conservation Law

The question remains: how can art law support these wildlife conservation initiatives? After all, art law is a specialized legal field addressing the creation, ownership, sale, and protection of art, encompassing intellectual property rights, cultural heritage preservation, provenance verification, and market regulation. Nature conservation law, on the other hand, focuses on safeguarding natural resources, biodiversity, and ecosystems, regulating activities like hunting, fishing, logging, and trade to prevent environmental degradation. In this section, we explore how integrating these two domains can offer a promising tool to address the use of wildlife products in art, particularly in the ASEAN region.

One potential initiative involves merging intellectual property protection with eco-labeling certifications. Geographical indications (GIs), which identify products with qualities tied to their origin, could be expanded to certify products as sustainably sourced and wildlife-friendly.  This approach, in line with the One Village, One Product campaign led by ASEAN, could protect sustainable wildlife use while fostering community-based practices. This strategy unites conservation, intellectual property, and cultural heritage for a common cause.

As envisioned, the enhanced GI certification would include sustainability and wildlife-friendly practices as core criteria. Commercially available art and heritage products such as textiles, wood carvings, and agricultural goods would need to meet these standards to earn the ASEAN-approved label. This certification scheme would offer significant benefits for wildlife protection. Encouraging alternative sustainable materials and ethical production practices decreases reliance on resources derived from endangered species. The overexploitation of high-value wood carvings could be curtailed through the certification of sustainably sourced wood. Additionally, discouraging the use of endangered wildlife derivatives such as ivory or hornbill casques at the grassroots level supports supply-induced demand reduction of these illegal products.

Moreover, the scheme uplifts community-based approaches by linking sustainability to products deeply rooted in local traditions and indigenous knowledge. Many GI art products reflect cultural identity and heritage. By adopting eco-focused practices and providing government support for alternative wildlife-friendly materials, artisans can act as stewards of both cultural and natural resources, preserving their traditions while supporting conservation. Artisans and woodworkers across the region can integrate sustainable sourcing without compromising their craft’s authenticity. Capacity-building initiatives, such as training artisans on sustainable methods, would strengthen community resilience, protect socio-economic rights, and ensure long-term benefits.

Economic incentives further bolster this approach. Certified products command higher market value, attracting ethical consumers who prioritize sustainability and conservation (a global market enjoying steady market growth). This can create a cycle where increased demand for certified products motivates communities to adopt wildlife-friendly practices, amplifying conservation impacts. At the same time, campaigns can be launched to attach stigmas to art products that are not sustainably sourced. By associating non-sustainably sourced wildlife products with negative social and ethical connotations, campaigns can discourage consumer demand and shift market preferences toward certified alternatives. Public awareness initiatives, celebrity endorsements, and policy interventions can reinforce these stigmas. This helps make unsustainable products less desirable and even socially unacceptable. Over time, such stigmatization can pressure artisans and commercial art producers to transition toward sustainable sourcing practices to maintain market credibility and consumer trust. These campaigns go hand-in-hand with labeling requirements and trade restrictions and make it easier for consumers to distinguish between ethical and unethical products.

Implementing this scheme in Southeast Asia requires careful planning and collaboration among Member States. ASEAN policymakers must set clear standards and enforcement mechanisms. Partnerships with other international bodies as well as academia can provide funding and technical expertise, while community leaders, Indigenous Peoples, and civil society can work together to adapt traditional practices to meet sustainability criteria without losing cultural authenticity.

V. Conclusion

One of the most significant challenges in the use of wildlife in art is balancing cultural preservation with conservation. Traditional art forms that rely on wildlife products must adapt to modern conservation ethics without losing their cultural significance. In line with ASEAN’s goal of a common regional market, facilitating both supply and demand for wildlife-friendly art can incentivize artisans to adopt sustainable practices and influence social norms for wildlife protection. To spearhead this, an ASEAN-led art certification program can help consumers identify and support ethical and environmentally responsible art.

Based on this premise, art law holds immense potential to support the protection of wildlife in the ASEAN region. However, this potential can only be realized through regional cooperation, an integrated legal framework, and community engagement. By aligning the art world with conservation goals, ASEAN can transform a significant challenge into an opportunity for preserving its rich biodiversity and cultural heritage.

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*Chad Patrick Osorio

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