As the old adage goes, don’t believe everything the director of the British Museum tells you. Contrary to his claim otherwise, the repatriation of historical artefacts is still a live issue today. Many major objects are being sought from European and American museums by their “parent” countries, including Egypt’s Rosetta stone (currently in Britain), bust of Nefertiti (Germany), and statue of Ramses II (Italy); Greece’s Parthenon marbles (Britain again); Peru’s Machu Picchu relics (United States); and even Korea’s Jikji – pages from what is believed to be the oldest book printed with movable metal type in existence (France). Where can these victims of archaeolo-theft turn for support?

Why, UNESCO you say? Indeed, that king among ineffectual global bodies has ventured into (or at least near) the fray once or twice. However, since the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (“1970 Convention”) only applies to items which were illegally exported after its ratification (1972), it is distinctly unhelpful for items seized centuries ago.

Nevertheless, these kinds of international agreements are useful as indicators of a global consensus on the property status of historical and cultural artefacts. For example, UNESCO’s Convention for the Protection of Cultural Property in the Event of Armed Conflict (“1954 Convention”) describes these types of items as the “cultural heritage of all mankind” (preamble). If this remained the consensus view today, the argument that particular items must be returned to particular countries would be considerably weakened – since all mankind would have equal claim to them. The 1970 Convention, however, makes it clear that cultural property belongs to the nation in which it originated (Article 4). That this later Convention was accepted and ratified by Western states indicates an increasing degree of acceptance for the notion of nation-specific cultural property (except perhaps in the British museum).

If most countries agree that historical objects belong to the countries in which they originated, why hasn’t a treaty to this effect – and establishing a regime for the return of said objects – been agreed upon? Quite simply, because the countries holding these treasures will give them up when you pry them from their cold, dead hands (much like they pried them from the cold, dead hands of other nations’ ancestors). The best attempt at a comprehensive treaty occurred fifteen years ago, and was created by UNIDROIT (“the Esperanto of the legal world”).

UNIDROIT’s Convention on Stolen or Illegally Exported Cultural Objects (“UNIDROIT Convention”) was drafted in 1995 as an elaborate exercise in drafting. This Convention, by its very nature, views cultural and historical artefacts as the property of their country of origin. It mandates that possessors of stolen cultural objects return them (Article 3(1)), and that the courts of states in possession of illegally exported objects – upon the request of another state – order them to be returned (Article 5(3)). In the latter case, the requesting state must have some particular interest in the object in question, but the criteria for satisfying this requirement are broad, and include the object being “of significant cultural importance”.

The UNIDROIT Convention, in contrast to UNESCO’s 1954 and 1970 Conventions, was comprehensive, and tackled the issue of the repatriation of historical artefacts in a simple and straightforward manner. Also in contrast to the UNESCO Conventions, it was never implemented. It’s easy to explain why: the UNIDROIT document actually required former colonial powers to return their historical loot, which they don’t want to do. Alas, getting governments to consent to treaties which would require them to do things they won’t consent to do is the Achilles heel of many international agreements.

Nevertheless, the UNIDROIT Convention is a useful guide to what a rational international agreement on cultural property repatriation might look like. It’s a shame to relegate it to the dustbin of history; at the very least, it belongs in a museum.

A CULTURAL EXCHANGE PROGRAMME

Why, therefore, do we need laws regulating or banning gambling? The fact that problem gambling is a myth takes care of a Hartian positivist/utilitarian justification. This leaves only Fuller and his “natural law”, which in this case amounts to antiquated Victorian morality. With such a foundation, I’d bet that today’s gambling laws are little different in substance from those of a hundred years ago.[1]

Such questions are all the more relevant today because of the rise of online gambling. Anyone who has watched movies on Megavideo knows that there are two rules: 1) there’s a 72-minute limit, and 2) popup ads for a certain gambling website – let’s call it “MartyMoker.com” – are ubiquitous. But are these kinds of betting sites legal? The truth is that in Canada today the answer is not entirely clear.

The situation is complex because online gambling by its nature involves cross-border transactions. It is clear that running an unregulated online casino from within Canadian territory would be illegal. But what about Canadians betting on websites based in other countries? At the present time, there seem to be no laws addressing this question. Internationally however, there are several models we could follow.

In the United States, prohibition is the rule. The 1961 Wire Act, which banned gambling using phone lines, has been used by the federal government as the basis for strong action against international gambling websites with American customers. The Unlawful Internet Gambling Enforcement Act updated the Wire Act and required financial institutions not to transfer funds to gambling sites. This led to the arrest of two Canadian heads of an “e-wallet” company which had transferred money from U.S. residents to online casinos. More recently, the Gibralter-based parent company of the aforesaid “MartyMoker” site paid over $100m to the U.S. government after admitting to targeting Americans in its advertising (though the Megavideo ads remain).

Clearly the American government’s efforts are misguided. Having sampled both interpersonal and internet-based gambling, I can attest that the latter is to be preferred. By providing your credit card number to an online gambling site, you only risk personal insolvency – which is much less painful for my thumbs than becoming indebted to a bookie. For this reason, the British approach – legalisation and regulation – is far more practical.

The 2005 UK Gambling Act made online casinos legal, with regulations to keep internet gambling free of crime, fair and open, and to protect minors and vulnerable adults. The British government has even attempted to work with other countries to draft a code of conduct for online gambling sites, though the U.S. did not participate in these talks. An approach similar to Britain’s has been adopted in other EU countries. But if Canada must choose a system, my personal recommendation is to follow the Caribbean nation of Antigua’s lead.

Antigua has made itself a haven for online casino corporations catering to Americans, who make up a majority of their customers despite the U.S. government’s policies. Furthermore, Antigua has actively stood up for the industry. In 2003 Antigua filed a complaint with the WTO against the U.S. for its anti-internet gambling laws, arguing that the laws in question were inconsistent with the U.S.’s obligations to allow for the free flow of goods and services. The American laws were upheld in a 2005 appeal as “necessary to protect public morals or to maintain public order”. However the WTO held that the American Interstate Horseracing Act, which allows for interstate electronic betting on horse races, creates a discriminatory policy, since equivalent international betting is prohibited. The U.S. has been ordered either to allow comparable international gambling (an International Law of the Seabiscuit?), to outlaw all electronic gambling equally, or to pay compensation to other WTO members. So far the U.S. has not implemented the WTO orders, and Antigua now seeks permission from the WTO to violate American intellectual property law as an enforcement mechanism.

Antigua’s openness to online gambling companies isn’t just logical from a legal standpoint, it’s good business. I myself have contributed several hundred dollars to the Antiguan economy just while writing this article. But if Canada followed Antigua’s lead in international electronic gambling, we could be the next E-Vegas! Just imagine: instant access to a wide variety of home-grown internet gambling operations, with all the corresponding social benefits…

In the meantime, if any burly fellows are asking around for someone of my description named Rusty Shackleford, I don’t know anything about it.

THAT'S ME WITH THE ORANGE HAT

No, an example of the proper response can be seen in Britain today, where an inquiry into the decisions leading up to the Iraq war, headed by Sir John Chilcot, has been underway since July. As the inquiry’s website makes clear, this is not a criminal tribunal, and it is not placing anyone on trial. Rather its purpose is to accurately establish what happened, and to identify lessons that can be learned (though have no fear: if the inquiry finds that mistakes were made, “it will say so”).

Britain’s Iraq inquiry is a nice, typical piece of theatre, with a colourful cast of characters. Those gaining the most attention include Jack Straw, Foreign Minister in 2003; Lord Goldsmith, the former Attorney General; Sir Michael Wood, the Foreign Office’s most senior legal advisor; Wood’s deputy Elizabeth Wilmshurst; as well as good old Tony – and his sidekick Gordon, the soon-to-be-former Prime Minister, will even make an appearance.

The plot is certainly no Lost, but it’s been interesting. In 2002 the UN Security Council passed Resolution 1441, which called on Iraq to comply with weapons inspections. Paragraph 12 is clear that a failure to do so on Iraq’s part would result in the Security Council immediately reconvening to discuss further action. After the resolution was unanimously passed, both the US and UK representatives made it explicitly clear that there was no “hidden trigger” to allow the automatic use of military force in the event of a violation. In the words of the UK representative: “There is no ‘automaticity’ in this resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion.”

A few months later in 2003, the Bush administration had decided that the British government had decided that military action against Saddam Hussein was necessary. To the extent that they needed justification, the UK government wanted to use Resolution 1441 as the basis for its action. Sir Michael and Ms. Wilmshurst advised Jack Straw that this course of action was illegal. Mr. Straw insists he did not ignore this advice – he merely “did not accept” it. Meanwhile, Lord Goldsmith likewise advised Mr. Blair that the war would be illegal. He later changed his mind based on the legal principle of “I got a letter from Jack Straw” and “American lawyers said it was okay”. Even then however, he warned that although the case for war was “reasonable”, silly old “courts” could disagree. After military leaders and civil servants demanded a yes or no answer, Lord Goldsmith decided military action was legal after all – three days before the invasion commenced. Ms. Wilmshurst resigned in protest, telling her superiors that the invasion was a “crime of aggression.”

Clearly, the above situation is nothing like other examples of leaders who ignored international law and were held to account, such as Slobodan Milosevic or Charles Taylor. For example, Britain’s leaders come from a rich, white country. Nevertheless, there are some kooks out there – such as Lord Bingham, the former Senior Law Lord of the UK – who believe that if international law was breached, then legal redress would be desirable. They couldn’t be more wrong.

International criminal law isn’t like domestic criminal law, except that they both disproportionately affect poor people (or countries). International law has the additional guiding principle that those who break the law need not be charged for their crimes if it would offend the sensibilities of the court to do so. This means that Western-run courts such as the ICC won’t prosecute British or American leaders because it would be undignified to subject such esteemed individuals to the ordeal. Underlying this sentiment is the knowledge that countries like Britain created the ICC, so Western exemption from its remit is implied.

More importantly, there are policy reasons why our (the Western world’s) leaders can’t be subjected to prosecution for violations of international law. Firstly, leaders like Mr. Blair and Mr. Straw have the duty to protect their countries. But to protect us from those who pose a threat to us, our leaders must be free to attack those who don’t. Put another way, our leaders shouldn’t have to worry about being prosecuted every time they make a decision to take action in self defence. That’s the problem with domestic criminal law. You know how if you were about to be attacked by someone on the street you’d be helpless because a crippling fear of prosecution would prevent you from defending yourself? No? Well I’m sorry but the whole argument relies on this logic.

The outcome of Britain’s Iraq inquiry is almost a foregone conclusion. Despite overwhelming evidence, the committee will likely not conclude that there was a decisive breach of international law. Rather, it will find that, although errors were made, British leaders made their difficult decisions in good faith. Such a conclusion is for the best, and should be more than enough justice for the thousands of Iraqis, Americans, and British who have died as a result of the Iraq war. Anything more could risk the dangerous precedent that the West, in addition to creating international criminal law, must be subject to it as well.

Blair and Straw Man

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