James Cuno is developing an interesting line of argument with respect to the intersection of antiquities policy and nationalism. He has a book forthcoming called Who Owns Antiquity?, but he has a number of other smaller pieces currently available, including a section in a work I'm currently reading called The Acquisition and Exhibition of Classical Antiquities: Professional, Legal, and Ethical Perspectives (Robin F. Rhodes ed.).
Cuno also has a short article at YaleGlobal titled Who Owns the Past?
Here's the abstract:
It’s a myth that cultural-property laws protect ancient antiquities or archaeological finds. Instead, the nationalist retentionist cultural-property laws are a dividing force, inhibiting regard for the world’s culture as a common legacy, argues James Cuno, president and director of the Art Institute of Chicago. Nations often use cultural artifacts for political claims, as tools to express a specific identity. Some governments even deny excavation permits or display requests for artifacts that reveal values that don’t reinforce a self-selected national image, and thus deny to the rest of the world the history of our common past. Worse, some nationalistic governments pervert the cultural record to spur racial, religious or ethnic violence. Culture is not a pure force, yet its power extends beyond national boundaries. As Cuno says, “An understanding that ancient and living cultures belong to all of us could contribute to greater respect for the differences among us and serve as a counterargument to the call for cultural purity that flames sectarian violence.”
Included in the article is a version of the same picture I have here, of the destruction of the Buddhas at Bamiyan on March 21, 2001. That of course is an example of the negative consequences which leaving heritage regulation to individual nations can perhaps produce. However it should be noted that the case was a rare occurrence. We don't often see nations intentionally destroying their heritage in such a public way. Also, merely because some nations use over-restrictive policies should not perhaps dictate that all regulation is counterproductive.
Cuno is developing an extension of the line of reasoning which has been employed by Paul Bator, John Merryman and others. They have argued, quite persuasively in many cases, that over-restrictive regulation has actually proved counterproductive and has only served to further incentivize the illicit trade.
David Gill has an interesting response as well, and argues the failure has not been with the legal regime in place, but rather in the ethical standards and acquisition policies which allow Museums to evade these rules. I think he makes an excellent point.
Given the expense and difficulty of prosecution of these cases, the focus now really should be first and foremost to ensure institutions are being careful with what they acquire, and this seems to have worked. To my knowledge it doesn't appear as if the major institutions in North America are purchasing antiquities, though some are in fact accepting donations from benefactors, and it is this acquisition by donation which is perhaps the weak link in the chain for many institutions.