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Y© 2010 Singapore Year Book of International Law and Contributors

INTERNATIONAL PROTECTION OF CULTURAL PROPERTY:SOME PRELIMINARY ISSUES AND THE ROLE OF

INTERNATIONAL CONVENTIONS

by GAO SHENG*

Disputes over cultural property illegally removed have arisen frequently in the last severaldecades. Whether such property must be returned is still heatedly debated worldwide today.Nevertheless, it is of vital importance to take measures to curb the illegal flow of cultural prop-erty and to improve protection of cultural property at both national and international levels.This article, focusing on international protection of cultural property, provides three layersof analysis. First, it surveys arguments within the debate between two conflicting theories-cultural nationalism and cultural internationalism-before putting forward two principles tobe followed in retrieving and protecting cultural property. Second, the main international con-ventions dealing with cultural property protection and dispute resolution will be analyzed, andtheir advantages and disadvantages examined. Finally, China is taken as a case study, exploringvarious strategies for China to protect her cultural treasures in the 21st century.

I. INTRODUCTION

Since cultural property is an irreplaceable expression of, and testimony to, the culturalidentity of a nation, people or group, the protection of cultural property demonstrates respectfor history, culture and tradition. As the demand for cultural property increases, illicittrafficking of cultural property continues to grow. As a result, the frequency of internationaldisputes over the return of cultural property that was removed illegally is currently on therise. Whether such property must be returned is still heatedly debated worldwide today.Nevertheless, consensus has been reached that effective measures must be taken to curb theillegal flow of cultural property and to improve the protection of cultural property at both thenational and international level. Recognising that the single effort of one nation, no matterhow diligent and intense, is not sufficient by itself to stop the illicit trafficking of culturalproperty, the international community has responded promptly, reinforcing bilateral aswell as multilateral co-operation, which has become one of the key elements in the effectiveprotection of cultural property.

This paper, focusing on the international protection of cultural property, is divided intofive parts, Part I being the introduction to the study. Part II briefly surveys some preliminaryissues concerning the international protection of cultural property. For this purpose, itwill examine the definition of cultural property as compared to cultural heritage, commenton the debate between cultural nationalism and cultural internationalism and put forward

Ph.D.; Associate Professor, School of Humanities and Law, Shandong University of Science and Technology,

People's Republic of China. This article was originally written during a UNIDROIT Research ScholarshipProgramme in January 2007, at UNIDROIT, Rome, Italy, under sponsorship from the Government of theRepublic of Korea. I would like to thank the Korean Government and the staff of UNIDROIT for providingthe financial support and research assistance which made my study at UNIDROIT possible. I am also gratefulto Jason R. Bonin, Associate Editor of SYBIL, for his insightful advice on revision of this article. All errorsare of course mine.

(2008) 12 SYBIL 57-79

HeinOnline -- 12 S.Y.B.I.L. 57 2008

SINGAPORE YEAR BOOK OF INTERNATIONAL LAW

basic principles for the international protection of cultural property. Part III analyses thetwo main international conventions on cultural property protection: the Convention on theMeans of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership ofCultural Property' and the UNIDR OIT Convention on Stolen or Illegally Exported CulturalObjects.2 The main provisions of the two conventions will be examined, their advantagesand disadvantages will be respectively analysed and proposals for their improvement willbe presented. Part IV discusses strategies for China, one of the biggest source nations3 ofcultural property, to improve the protection of cultural property in the 2 1St century. For thispurpose, Chinese cultural property legislation will be examined briefly and proposals forimproving cultural property protection in China will be presented. Finally, some concludingobservations will be made in Part V.

II. THE INTERNATIONAL PROTECTION OF CULTURAL PROPERTY: SOME PRELIMINARY ISSUES

A. Cultural Property vs. Cultural Heritage

There is no single definition of cultural property, which empirically includes, "the sort ofthings that dealers deal in, collectors collect, and museums acquire and display". 4 Existingnational and international legislative instruments differ in their criteria used to determinethe categories of objects to be protected. In terms of international instruments, the first useof the term "cultural property" is found in the 1954 Hague Convention for the Protectionof Cultural Property in the Event of Armed Conflict,5 which defines cultural property as"movable or immovable property of great importance to the cultural heritage of everypeople". 6 In the later 1970 UNESCO Convention, cultural property is defined as propertywhich, on religious or secular grounds, is specifically designated by each state as being ofimportance for archaeology, prehistory, history, literature, art or science, including but notlimited to rare collections, antiques, historical monuments, religious objects and other itemsof importance to the culture or identity of a group of people. 7 Though the 1995 UNIDROITConvention relates to the return of stolen or illegally exported "cultural objects", 8 most legalcommentaries still use the term "cultural property". 9

Cultural heritage is another legal term employed in legal literature, as well as the morerecent UNESCO instruments, for example, the Convention for the Protection of UnderwaterCultural Heritage'° and the Declaration Concerning the Intentional Destruction of CulturalHeritage of 17 October 2003. As noted by Lyndel V. Prott, the legal definition of cultural

1 14 November 1970, 823 U.N.T.S. 231 (entered into force 24 April 1972) [1970 UNESCO Convention].2 24 June 1995, 34 I.L.M. 1322 (entered into force 1 July 1998) [1995 UNIDROIT Convention].3 "Source nations" generally refer to nations rich in cultural property resources while economically undeveloped;

while "market nations" refer to economically developed nations lacking in cultural property sources andpossessing a large domestic demand for cultural property. See John H. Merryman, Thinking About theElgin Marbles: Critical Essays on Cultural Property, Art and Law (The Hague and Boston: Kluwer LawInternational, 2000) at 124.

4 John H. Merryman, "Cultural Property Internationalism" (2005) 12 Int'l J. Cult. Prop. 11 at 12.5 14 May 1954, 249 U.N.T.S. 240 (entered into force 7 August 1956) [1954 Hague Convention].6 Ibid., art. 1.7 1970 UNESCO Convention, supra note 1, art. 1.8 1995 UNIDROIT Convention, supra note 2, art. 2 ("For purposes of this Convention, "cultural objects" are

those which, on religious or secular grounds, are of importance for archaeology, prehistory, history, literature,art or science and belong to one of the categories listed in the Annex to this Convention.").

9 See Manlio Frigo, "Cultural Property v. Cultural Heritage: A 'Battle of Concepts' in International Law?"(2004) 854 Int'l Rev. Red Cross 367 at 368.

10 2 November 2001, 41 I.L.M. 40 (entered into force 2 January 2009).

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INTERNATIONAL PROTECTION OF CULTURAL PROPERTY

heritage is one of the most difficult problems confronting scholars today. 11 Compared withcultural property, which is a purely Western legal category and much narrower in bothmeaning and scope, 12 cultural heritage should be understood as much broader in scope inthat it includes not only tangible things such as archaeological sites, monuments, or worksof art, but also intangible elements such as traditional knowledge, skills and rituals. At thecore of the legal definition of 'cultural heritage' is "heritage", emphasizing the importanceof cultural beliefs, values and practices as a valuable resource; whereas the term 'culturalproperty' might suggest a focus on its economic value and less on its more important aspectof culture. Some have argued that the increasing use of the term "cultural heritage" isan important corrective to many of the limitations to applying the concept and law ofproperty to culture.13 Those who favour using cultural heritage as a definition tend to do sobecause "it creates a perception of something handed down; something to be cared for andcherished." 14 By general understanding, cultural heritage consists of things or traditionswhich are intellectual and the spiritual achievements of nations, peoples or groups., It isone of the basic elements for shaping national culture and world civilization. It includes notonly tangible things, whether movable or immovable, 16 but also intangibles, such as oraltraditions, performing arts and rituals, etc. 17

At the present stage of discourse, it seems impossible to reach consensus on a widelyaccepted definition of either cultural property or cultural heritage. 18 Nevertheless, these twoterms can largely be used interchangeably at either the domestic or international level despitethe technical distinction, since both notions are incomplete and must resort to other non-legaldisciplines such as history, art, archaeology, ethnography, etc., in order to determine morespecifically their respective content. 9 For the purpose of this paper, cultural property refersto any tangible object that has artistic, historical, scientific, religious, or social significance.

B. Cultural Nationalism vs. Cultural Internationalism

The notion of cultural nationalism and cultural internationalism was first raised by Americanscholar John Henry Merryman in the 1980s in discussing the Elgin Marbles debate. 20 Hemade a comparison between the 19S4 Hague Convection and 1970 UNESCO Conventionand concluded that the former aimed to protect against the destruction of cultural property,while the latter supported the policy of retention adopted by most source nations of cultural

11 Lyndel V. Prott, "Problems of Private International Law for the Protection of the Cultural Heritage" in Recueil

des Cours, Collected Courses of the Hague Academy of International Law, Vol. 217 (1989-V) (The Hague:Martinus Nijhoff Publishers, 1991) at 224.

12 See Janet Blake, "On Defining the Cultural Heritage" (2000) 49 Int'l & Comp. L.Q. 61 at 66.13 Lyndel V. Prott & Patrick J. O'Keefe, "'Cultural Heritage' or 'Cultural Property'?" (1992) 1 Int'l J. Cult.

Prop. 307 at 312.14 Ibid. at 311.15 See Prott, supra note 11.16 Such as those defined in the 1972 Convention Concerning the Protection of the World Cultural and Natural

Heritage, 16 November 1972, 27 U.S.T. 37, 1037 U.N.T.S. 151 (entered into force 17 December 1975).17 For example, article 2(2) of the UNESCO Convention for the Safeguarding of the Intangible Cultural Her-

itage, 17 October 2003 (entered into force 20 April 2006), online: <http://unesdoc.unesco.org/images/0013/001325/132540e.pdf>. "Intangible cultural heritage" includes the following domains: (a) oral traditionsand expressions, including language as a vehicle of the intangible cultural heritage; (b) performing arts; (c)

social practices, rituals and festive events; (d) knowledge and practices concerning nature and the universe; (e)traditional craftsmanship.

18 Lyndel V. Prott and P. J. O'Keefe, Law and the Cultural Heritage: Discovery and Excavation, Vol.1 (London:Butterworths, 1984) at 8.

19 See Frigo, supra note 9 at 376.20 For a detailed disscussion of the Elgin Marbles debate, see Jeanette Greenfield, The Return of Cultural Trea-

sures, 3rd ed. (New York: Cambridge University Press, 2007) at 41-96. See also John Henry Merryman,"Thinking about the Elgin Marbles" (1985) 83 Mich. L. Rev. 1881 [Merryman, "Thinking about"].

12 SYBIL



property. One insists on retention on the basis of nationalism; the other emphasises adoptinguniversalist protective measures. These two ways of thinking about cultural property arecalled cultural nationalism and cultural internationalism respectively.2 1

1. Cultural nationalism

The notion of cultural nationalism is based on the principle of national sovereignty, whichemphasizes a nation's control over all people, things and conduct within its territory. There-fore, cultural property is an important and indispensable part of national treasures whichcannot be separated from the source country or illicitly exported. Supporters of culturalnationalism insist on adopting rigid national cultural property ownership legislation andexport control, while at the same time asking for the return of cultural property illegallyremoved from the source country.

Proponents of cultural nationalism hold that since cultural property originated in sourcenations, it should be returned to its original owner once it has been stolen or illegallyexported abroad. They also hold that a legal system in favour of the return of culturalproperty should be established by the international community.

2. Cultural internationalism

Cultural internationalism holds that cultural property is independent of one nation's prop-erty rights and control over it. The interests in cultural property should be shared by allnations and peoples in the world. In the eyes of cultural internationalism, cultural national-ism is nothing but selfish possession of cultural property, which denies public access to andappreciation for the common heritage of mankind. Proponents of cultural internationalismhold that nationalist policies will lead to cultural impoverishment of people in other partsof the world. 22

According to Merryman, cultural internationalism consists of three elements: preserva-tion, integrity and distribution.23 An expert is of the opinion that all the three elementsput forward by Merryman are essentially property conceptions, i.e. concerns are with thephysical preservation of objects and their proper ownership. 24 One problem of discussingcultural property with such terminology is that it is misleading as it ignores the close linkbetween cultural property and the broader cultural identity it represents. An expert oncecommented that it is the psychological and emotional connection to things, rather than theirownership, that is at the heart of cultural property concerns. When viewed in actionablelegal categories, cultural property claims may not be best resolved through property law.25

Just as some authors have correctly pointed out, "labels" must be used carefully indiscussing cultural property protection. Cultural nationalism carries with it a negativeconnotation, misunderstood by some as a pure emotional appeal by source nations; whilecultural internationalism may mask the true intention of market nations in obtaining fortheir own interests the cultural property of source nations.26

To better understand the conflict between cultural nationalism and cultural interna-tionalism, the cultural aspect of cultural property should be recognized in order to betterunderstand the relationship between cultural property and a nation, people or group. On

21 See John Henry Merryman, "Two Ways of Thinking about Cultural Property" (1986) 80 A.J.I.L. 831 at 846[Merryman, "Two Ways of Thinking"].

22 Ibid. at 847.23 See Merryman, "Thinking about", supra note 20 at 1917.24 See Roger W. Mastalir, "A Proposal for Protecting the 'Cultural' and 'Property' Aspects of Cultural Property

under International Law" (1993) 16 Fordham Int'l L.J. 1033 at 1060-62.25 See Daniel Shapiro, "Repatriation: A Modest Proposal" (1998) 31 N.Y.U. J. Int'l L. & Pol. 95 at 100.26 See Mastalir, supra note 24 at 1065-67.

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the other hand, to recognize the cultural aspects of cultural property does not necessarilymean the property aspect of cultural property should be ignored. Resolution of the conflictrequires recognition of both cultural and property aspects.27 A regulated cultural propertytrade is necessary-the point lies in how to define the ways and subjects of trade appropri-ately. Therefore, two principles should be followed in order to resolve disputes over culturalproperty. One is termed the protection principle, and the other, the exchange principle.

C. Protection vs. Exchange

1. Protection

Both cultural nationalism and cultural internationalism think it is important to protect andpreserve cultural property, though they are divided on how it should be done. For culturalinternationalists, cultural property should stay with nations who can afford the best availableprotections for preservation, while for cultural nationalists, cultural property should staywhere it originated as only in its original settings can cultural property be best preservedand understood. 8 What then, is "protection"? Is it the same as "retention" 29-often usedby cultural internationalists to criticize cultural nationalism?

Firstly, "protection" means that the safety and integrity of cultural property will beensured. Dismembered cultural property should be returned to its original state. Oncecultural property is destroyed, both the source nation and international community lose avaluable part of world heritage. Secondly, "protection" requires the preservation of mes-sages cultural property carries with it because it is equally important to preserve the recordsof a civilization. 30 Separated from its cultural context, cultural property will lose culturaland historical significance.

Thirdly, "protection" is not equal to "retention", as the latter requires all cultural objectsto stay where they are and forbids any forms of movement of cultural property. Undersome circumstances, it is necessary for certain cultural property to stay where it originated,especially archaeological objects. 31 But there are certain cultural objects whose physicalsafety will not be endangered by movement. It should be recognised that while internationalmovement of cultural property does to a large extent threaten physical preservation ofcultural property, legally regulated movement can, in most cases, promote cultural propertyprotection. Therefore, the international movement and exchange of cultural property, basedon recognized legal standards, should be encouraged.

2. Exchange

The preamble to the 1970 UNESCO Convention states that the interchange of cultural prop-erty among nations for scientific, cultural and educational purposes increases the knowledgeof the civilization of man, enriches the cultural life of all peoples and inspires mutual respectand appreciation among nations. The 1976 UNESCO Recommendation Concerning the

27 See James A. R. Nafziger, "Comments on the Relevance of Law and Culture to Cultural Property Law" (1983)

10 Syracuse J. Int'l L. & Com. 323 at 326.28 In support of the latter, see 1970 UNESCO Convention, supra note 1, Preamble.29 For a discussion of the relation between "protection" and "retention", see John Henry Merryman, "A Licit

International Trade in Cultural Objects" in Martine Briat & Judith A. Freedberg, eds., Legal Aspects ofInternational Trade in Art: International Sales of Works of Art, vol. 5 (The Hague: Kluwer Law International,1996) 3 at 4 [Merrymann, "A Licit Trade"].

30 See Merryman, "Thinking about", supra note 20 at 1917.31 For reasons for attributing a special link between an object and the country of origin or excavation, see e.g. Kurt

G. Siehr, "The Beautiful One has Come-To Return: The Return of the Bust of Nefertiti from Berlin to Cairo",online: Universidad Aut6noma de Madrid <http://www.uam.es/personal-pdi/derecho/pineau/nefertit.pdf>.

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International Exchange of Cultural Property recognizes that the circulation of cultural prop-erty, when regulated by legal, scientific and technical conditions calculated to prevent illicittrading in and damage to such property, is a powerful means of promoting mutual under-standing and appreciation among nations. 32 It can be inferred from these two documentsthat UNESCO pays close attention to the importance of the international exchange of cul-tural property. At present, there are at least two forms of international exchange: the loanexhibition and trade in cultural property.

(a) Loan exhibition: A loan exhibition system is a good choice for nations reluctant to carryout market trade in cultural property. Loan exhibitions include not only redundant objects,but certain particular or representative cultural property. Through loan exhibitions, othernations will have access to loaned cultural property, while the loaning nation can raisemoney from the loan programme to improve its cultural property protection programmes.In addition, loan exhibitions may, to some extent, prevent museums and collectors fromacquiring cultural property illegally, thus decreasing the demand for illegally taken culturalproperty.

(b) Trade in cultural property: It has been suggested that the prohibition of trade in culturalproperty does not necessarily eradicate illegal trafficking in cultural property. Merrymanholds that there is ample empirical evidence that retentive laws have not effectively limitedthe trade in cultural property, but merely determined the form that traffic takes and the routesit follows. 33 Some authors also take the view that by prohibiting or unduly restricting a licittrade in cultural property, source nations assure the existence of an active profitable blackmarket. 34 Even proponents of cultural nationalism do not deny that certain cultural propertywith little cultural value can be freely traded in the market. Though restrictive policies oncultural property export adopted by most source nations do not necessarily encourage blackmarket trade in cultural property to the extent pronounced by some scholars,35 it will surelyfoster a licit market demand to put some selected or abundant cultural property up forlegally permissible trade. This may curb black market trade to a certain extent.

Once a source nation is determined to put cultural property into the market, it willdecide which kinds of cultural objects are suitable for market trade. 36 Generally speaking,source nations can maintain control over their most valuable and representative culturalproperty. For redundant cultural objects that are not necessarily exclusively possessed bysource nations, market trade seems appropriate.

Not only can legally regulated trade in cultural property ensure control of source nationsover the most important cultural property, it can also promote international exchange ofcultural property, which will in turn widen public access to and appreciation for valuablecultural treasures of mankind.

III. INTERNATIONAL CONVENTIONS FOR CULTURAL PROPERTY PROTECTION: 1970 UNESCO

CONVENTION AND 1995 UNIDROIT CONVENTION

Though the 1954 Hague Convention was the first international effort to express aglobal interest in cultural property protection and introduced the notion of international

32 Recommendation Concerning the International Exchange of Cultural Property, 19th session of the General

Conference of the United Nations Educational, Scientific and Cultural Organization, Nairobi, 26 October to30 November 1976, online: <http://www.icomos.orglunesco/exchange76.html>.

33 Merryman, "Two Ways of Thinking", supra note 21 at 848.34 Ibid., at 847-48. See also Paul M. Bator, "An Essay on the International Trade in Art" (1982) 34 Stan. L.

Rev. 275 at 317.35 John Henry Merryman, "Cultural Property Ethics" (1998) 7 Int'l J. Cult. Prop. 21 at 21.36 For a detailed discussion of licit and illicit trading in cultural property, see Merryman, "A Licit Trade", supra

note 29 at 26.

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co-operation and individual state responsibility, 37 it applies only to the protection andsafeguarding of cultural property in the event of armed conflict. Since the 1970s, theinternational community's knowledge regarding the illicit flow of cultural property duringpeacetime is gradually increasing and new solutions are being pursued. Under the auspices ofUNESCO, a series of declarations, resolutions and international agreements were adopted,greatly reinforcing international co-operation. The most important achievements includethe 1970 UNESCO Convention and the 1995 UNIDROIT Convention. However, theseachievements have had limited effect on curbing the illegal flow of cultural property. Theselimitations are partly due to political influence and partly due to defects in the internationallegal system itself.

A. 1970 UNESCO Convention

Considering that the ever-increasing theft and illegal export of cultural property had greatlyendangered efforts to protect cultural property, UNESCO adopted the 1970 UNESCOConvention at its 16th session on 14 November 1970 in Paris. As the first internationalinstrument to recognise a general obligation upon States to take steps to prevent the illicitmovement of cultural property, the 1970 UNESCO Convention defines cultural propertyclearly; lays down basic measures for prevention, restriction, protection and recovery ofcultural property; and establishes principles for international cultural property exchange.

1. Main provisions

The 1970 UNESCO Convention is essentially a public law treaty which requires the stateparties themselves to take various protective measures, such as setting up an inventory ofimportant public or private cultural property, 38 promoting the establishment and devel-opment of institutions to ensure the protection of cultural property,39 establishing ethicalguidelines for collectors and curators,40 and taking educational measures to stimulate anddevelop respect for the cultural heritage of all States. 41

In general, the 1970 UNESCO Convention aims to control illegal flow of cultural prop-erty in three ways. Firstly, it requires state parties to adopt appropriate national legislationto protect national cultural property, prevent the illegal export and transfer of cultural prop-erty, and establish moral principles for cultural property exchange. Secondly, state partiesshould, in accordance with domestic legislation, prevent the import of cultural propertyillegally exported from other state parties. Thirdly, state parties should prohibit the exportof cultural property without an export license. Particularly, article 6 establishes an exportlicence system to prevent the export of cultural property without such licences, while arti-cle 7 requires state parties to take measures to prevent museums and similar institutionsfrom acquiring cultural property illegally exported from another state party. Article 7 alsoprohibits the import of cultural property stolen from museums, religious or secular publicmonuments, or similar institutions, and requires state parties to take appropriate steps torecover and return such cultural property, provided that the requesting state shall pay justcompensation to the innocent purchaser.

In addition to export control, article 9 requires state parties to take preliminary measuresto prevent irremediable injury to cultural property. According to this article, any state

37 Jane Warring, "Underground Debates: The Fundamental Differences of Opinion That Thwart UNESCO'sProgress in Fighting the Illicit Trade in Cultural Property" (2005) 19 Emory Int'l L. Rev. 227 at 249.

38 1970 UNESCO Convention, supra note 1, art. 5(b).39 Ibid., art. 5(c).'0 Ibid., art. 5(e).41 Ibid., art. 5(f).

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party whose cultural patrimony is in jeopardy from pillage of archaeological or ethnologicalmaterials may call on other state parties who are affected. In all, article 9 of the 1970UNESCO Convention is intended to provide a mechanism by which state parties will provideassistance to each other in cases of pillage of archaeological and ethnological materials.

2. Main problems in implementing the 1970 UNESCO Convention

The 1970 UNESCO Convention provides the basic mechanism for preventing and curbingillegal trafficking in cultural property, and has exerted great influence on the policy-makingof museums and similar institutions. However, the Convention, like any other, is not perfect.

Firstly, the scope of cultural property under protection is limited, as only those thatare "specifically designated" warrant protection. Secondly, according to article 7, onlysource nations can initiate return claims, while individuals are not allowed to ask for thereturn of stolen or illegally exported cultural property. Hence, most commentators agreethat the 1970 UNESCO Convention provides no private remedies.42 Thirdly, the importand export control system is not complementary in that article 6 prohibits the export ofcultural property without an export licence, but no article requires state parties to prohibitimport of any cultural property without an import licence to give full force to article 6.According to article 7, only objects stolen from museums, public monuments or similarinstitutions, and listed as part of the inventory of such institutions, are prohibited frombeing imported. Thus the scope for import control is narrowed to a large extent. Thenarrower import control is, the wider the channel for cultural property loss. Fourthly, the1970 UNESCO Convention is not retroactive. Hence it does not apply to cultural propertyillegally removed before the convention entered into force. Lastly, but certainly not of leastimportance, some terms employed in this Convention are vague. For example, it is notclear what the terms "specifically designated" or "just compensation" denote, or what therelation between "cultural property" and "cultural heritage" mentioned in article 4 is.

In all, though the objectives of the 1970 UNESCO Convention are lofty, it does not func-tion very well due to its vague terms and inconsistent structure. 43 Hence, a supplementaryinstrument was required, which would respond to the concerns of state parties who feltthat the 1970 UNESCO Convention was not adequately precise. Indeed, even UNESCOitself has realised that the very flexiblity of the Convention has proved detrimental in thatit allows for diverse interpretations and a resulting reluctance to adhere to it.

3. Domestic implementation of the 1970 UNESCO Convention by market nations

Many source nations were reluctant to sign the 1970 UNESCO Convention when it wasadopted in the 1970s. America took the lead and became the first major art-importingcountry to implement the 1970 UNESCO Convention by enacting the Convention on Cul-tural Property Implementation Act44 in 1972. Subsequently, Canada passed the CulturalProperty Export and Import Act 45 in 1977. Only recently did several important culturalproperty importing nations enact domestic legislation to control the theft and illegal exportof cultural property.46 For example, Japan passed the Law Concerning Controls on the

42 See Jennifer Sultan, "Combating the Illicit Art Trade in the European Union: Europol's Role in Recovering

Stolen Artwork" (1998) 18 N.W. J. Int'l L. & Bus. 759 at 775.43 See Merryman, "Two Ways of Thinking", supra note 21 at 842.44 Convention on Cultural Property Implementation Act, 19 U.S.C. S 2601-13 (2000).45 Cultural Property Export and Import Act, R.S.C. 1985, c. C-51.46 See Jason M. Taylor, "The Rape and Return of China's Cultural Property: How Can Bilateral Agreements

Stem the Bleeding of China's Cultural Heritage in a Flawed System?" (2006) 3 Loy. U. Chi. Int'l L. Rev. 233at 241 (explaining the reasons for market states' recent accessions to the 1970 UNESCO Convention).

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Illicit Export and Import of Cultural Property;47 the United Kingdom enacted the Dealingsin Cultural Objects (Offences) Act 2003 ;48 and Switzerland passed the Federal Act on theInternational Transfer of Cultural Property.4 9

Although each piece of legislation has its own features, all measures taken by these leg-islative provisions to curb the illegal flow of cultural property are similar to those of the1970 UNESCO Convention. Though the 1970 UNESCO Convention is far from perfect,its acceptance and implementation by more cultural property market nations will surely pro-mote the return of lost cultural property to source nations and strengthen efforts in curbingillicit trafficking in cultural property.

B. 1995 UNIDROIT Convention: A New Perspective

Recognizing the need to establish a comprehensive mechanism to prescribe clearer obliga-tions with respect to the protection of cultural property against theft and illegal export,UNESCO requested UNIDROIT to draft an international convention in the 1980s basedon the 1970 UNESCO Convention, with the expectation that this new convention will gainwider acceptance among cultural property market nations who are not state parties to the1970 UNESCO Convention. After more than ten years of hard work, the 1995 UNIDROITConvention was finally adopted on 24 June 1995 in Rome. The 1995 UNIDROIT Con-vention intends to facilitate the recovery and return of stolen and illegally exported culturalproperty. Some commentators have pointed out that this Convention strikes a delicate bal-ance between compulsory return and compensation for a bona fide purchaser,5 0 and it isalso an attempt to reach a compromise between civil law systems which favour bona fidepurchasers and common law systems, which give priority to original owners of culturalproperty.

1. Main provisions

(a) Scope of application and definition: According to article 1, this Convention appliesto claims of an international nature for the return of stolen or illegally exported culturalobjects. Thus, the Convention has no application to claims arising from purely domestictransactions. "Cultural objects" are those which, on religious or secular grounds, are ofimportance for archaeology, prehistory, history, literature, art or science. Compared tothe 1970 UNESCO Convention, "cultural objects" defined and protected under the 1995UNIDROIT Convention need not be "specifically designated" by state parties. Thus, awider range of objects are included for protection.

(b) Restitution of stolen cultural objects: Several points are worthy of mention. Firstly,the general rule for restitution of stolen cultural objects is clear: the possessor of a piece ofcultural property which has been stolen shall return it." l Drafters of this Convention madea comprehensive analysis of private law rules regarding ownership of stolen cultural objects,especially rules of civil law and common law nations, in order to determine which rule is

47 Act No. 81 of 2002, online: <http://www.bunka.go.jp/english/law.html>.

48 2003, c. 27, online: <http://www.uk-legislation.hmso.gov.uk/acts/acts2003/20030027.htm>.49 Loi federale sur le transfert international des biens culturels [LTBC] [Federal Act on the International Transfer

of Cultural Property, CPTA], Code civil suisse [Cc] 20 June 2003, R.S. 444.1 (Switz.). For the Englishversion, see, online: UNESCO <http://portal.unesco.org/culture/fr/files/29538/11351850233CPTA-en.pdflCPTAen.pdf>.

5o See Ian M. Goldrich, "Balancing the Need for Repatriation of Illegally Removed Cultural Property with theInterests of Bona Fide Purchasers: Applying the UNIDROIT Convention to the Case of the Gold Phiale"(1999) 23 Fordham Int'l L.J. 118 at 163.

51 1995 UNIDROIT Convention, supra note 2, art. 3(1).

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more favourable to curbing trafficking in cultural property. The focus is mainly on bonafide acquisition prevalent in civil law systems. Studies of many scholars concluded that theonly way to prevent illegal flow of cultural property is to ensure the return of stolen culturalproperty to its original owners, though this will change the long-standing system of bona fideacquisition in the European legal tradition.5 2 Recognizing these studies, the drafters of the1995 UNIDROIT Convention stipulate in article 3 the general principle for return of stolencultural objects. This principle should always be complied with, whether the possessor isbona fide or not. "Bona fide" is relevant only when compensation is considered.

Secondly, the time limitation for return claims5 3 was one of the most controversial partsin the Convention's drafting. Some nations opposed any time limit for initiating restitutionclaims; others insisted on prescribing much shorter limitation periods. These two viewpointswere proposed by source nations and market nations respectively. As a compromise, theConvention finally suggested two types of limitation periods. Generally, claims for stolencultural objects should be brought within a period of three years from the time when theclaimant knew the location of the cultural object and the identity of its possessor; and inany case, within a period of fifty years from the time of the theft. But according to article3(4), claims to cultural objects which form an integral part of an identified monument orarchaeological site or belong to a public collection, are not subject to the overall fifty yearslimitation. In this case, only the three-year period, as contained in article 3(8), applies.As recognizing a rule that provides for no time limits will keep many market nations fromsigning this Convention, article 3(5) allows a contracting state to make a declaration that aclaim for return of cultural objects in article 3 is subject to a limitation period of seventy-fiveyears or longer, as provided in that state's law.

Thirdly, the 1995 UNIDROIT Convention makes special provision for compensationfor bona fide possessors. In respect of the return of stolen cultural objects, this Conven-tion favours the interests of the original owners. To try to accommodate civil law nations,this Convention requires fair and reasonable compensation for bona fide possessors. Thisprovision is also controversial. Some nations were opposed to it, either because of a con-flict with domestic laws, or because they did not possess enough resources for providingcompensation.54 To be entitled to compensation, the possessor should be able to prove heneither knew nor ought reasonably to have known that the object was stolen, i.e. that heexercised due diligence when acquiring the object in dispute. Some elements to be consideredin determining due diligence are listed in article 4(4).55

(c) Return of illegally exported cultural objects: Firstly, the basic rule for return is con-ditional in nature. Whereas the return of stolen cultural objects is concerned with bonafide acquisition, with respect to the return of illegally exported cultural objects, the mainproblem encountered is the recognition and enforcement of foreign export laws.

According to article 5(1) of the Convention, once a contracting state requests the return ofan object, the requested state must affect a return of that object. The return is conditional inthat it only applies to objects which have been proven to be of significant cultural importancefor the requesting state, or objects whose removal significantly impairs one or more of the

52 The Law Reform Commission of Ireland, Report on the UNIDROIT Convention on Stolen or Ille-

gally Exported Cultural Objects (LRC 55-1997) online: <http://www.lawreform.ie/publications/data/lrc95/lrc_95.html>. [Report on the UNIDROIT Convention]

53 1995 UNIDROIT Convention, supra note 2, art. 3(3)-(8).54 Report on the UNIDROIT Convention, supra note 52, para. 3.67.5 1995 UNIDROIT Convention, supra note 2, art. 4(4). In determining due diligence, a court shall regard:

all the circumstances of the acquisition, including the character of the parties, the price paid, whetherthe possessor consulted any reasonably accessible register of stolen objects, and any other relevantinformation and documentation which it could reasonably have obtained, and whether the possessorconsulted accessible agencies or took any other step that a reasonable person would have taken in thecircumstances.

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four kinds of interests listed in article 5(3). Article 7 provides the circumstances under whichprovisions of return shall not apply.

Secondly, the limitation periods laid down in article 5(5) are similar to those establishedin article 3(3). However, in relation to illegally exported cultural objects, no provisionscomparable to those in article 3(5) exist, as the return procedure provided in chapter III ofthe Convention applies only to significant cultural objects which must meet the requirementsof article 5(3).

Thirdly, no due diligence requirement is mentioned for possessors of illegally exportedcultural objects. The absence of such provision deviates significantly from the requirementwith respect to stolen cultural objects. Thus, issues concerning burden of proof are notclear.

Fourthly, the issue of retroactivity must be discussed. Retroactivity is also one of themost debated and sensitive topics in the drafting of this Convention. Some nations, mainlydeveloped nations, preferred a non-retroactive approach to application, while nations suf-fering from heavy cultural property losses felt it unacceptable to recognize the legality ofany previously illegal transaction in cultural property. Ultimately, non-retroactivity waspreferred. However, article 10(3) states clearly that this Convention does not in any waylegitimize any illegal transaction that took place before its entry into force.

2. Comparing the 1970 UNESCO Convention with the 1995 UNIDROIT Convention

Both conventions recognize a nation's control over the export of cultural property. They alsorecognize that trade in cultural property exported against the laws of a source nation is illegaland state parties are obligated to facilitate the return of stolen or illegally exported culturalproperty and prevent the import of such objects. However, there are many differencesbetween them.

Firstly, though definitions on cultural property are similar, cultural objects protected bythe 1995 UNIDROIT Convention need not be "specifically designated" by state parties,as required by the 1970 UNESCO Convention. Thus, more objects are protected underthe 1995 UNIDROIT Convention than the 1970 UNESCO Convention. Particularly, the1995 UNIDROIT Convention extends protection to undiscovered and unexcavated culturalproperty.

56

Secondly, as previously mentioned, it is commonly recognized that the 1970 UNESCOConvention generally operates through interstate diplomatic channels and not through anyset of private legal mechanisms.57 Hence, it does not provide individuals with the rightto bring suit. In contrast, the 1995 UNIDROIT Convention has operational private lawprovisions that enable both states and individual owners who wish to recover a stolen objectto file a complaint before a court in the state where the object is located.5 8

Thirdly, with respect to compensation for bona fide purchasers, the 1970 UNESCOConvention merely emphasizes fair compensation but does not define the concept of "bonafide". In contrast, the 1995 UNIDROIT Convention lists several elements to be consideredin deciding whether a buyer is a bona fide buyer.

Fourthly, the 1995 UNIDROIT Convention provides limitation periods and an arbitra-tion clause.5 9 The 1970 UNESCO Convention does not contain such provisions. A periodof limitation may ensure that original owners bring a timely claim, while arbitration providesan alternative dispute resolution method for settling cultural property disputes.

Though the two conventions differ in many respects, their objectives are similar, thatis, to call upon the international community to take an active part in protecting cultural

56 Goldrich, supra note 50 at 140.57 1970 UNESCO Convention, supra note 1, art. 7(b)(ii).58 1995 UNIDROIT Convention, supra note 2, art. 8(1).

59 Ibid., art. 8(2).

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property. At present, these two international legal instruments work together to try to curbillegal trafficking in cultural property.

3. Main disadvantages of the 1995 UNIDROIT Convention

The 1995 UNIDROIT Convention provides preferable mechanisms for recovering stolenand illegally exported cultural objects. Significantly, it covers almost all classes of stolencultural objects, recognizes an individual's legitimate claim and prescribes due diligencerequirements in detail. Nevertheless, some defects should be pointed out.

Firstly, though the compensation clause is a big step forward in relation to the 1970UNESCO Convention, it still does not clearly state how to determine "fair and reasonable"compensation and how to weigh the elements when deciding due diligence. The court retainsgreat discretionary power in deciding whether to give compensation and the amount thereof.

Secondly, this Convention suggests different types of limitation periods. However, someworry it will actually encourage "fraudulent concealment" 60 by setting definite time periodsfor the true owner of stolen cultural property to bring a claim. Thieves of stolen culturalproperty can hide the stolen object until the prescribed time limitation expires. The stolencultural property can then be safely sold. In addition, incentives for theft are enhanced asthe value of cultural property increases over time.

Thirdly, this Convention applies only to stolen and illegally exported cultural objects afterits entry into force. It does not provide protection for millions of cultural property alreadyillegally removed before the effective date of this Convention. Therefore, some scholarshold that the 1995 UNIDROIT Convention does not achieve its anticipated objectives,merely adding another legal method for resolving cultural property disputes to the alreadytangled web of rules. 61 Though this view is somewhat extreme and less objective, it showsscepticism towards the potential of this Convention to effectively settle cultural propertydisputes.

IV. CULTURAL PROPERTY PROTECTION IN 21ST CENTURY CHINA

A. Illegal Flow of Chinese Cultural Property: An Overview

As one of the oldest civilizations in the world, China, with an unbroken cultural recordfrom prehistory to the present, boasts rich sources of cultural property. The value of Chi-nese cultural property lies not only in its preciousness and scarcity but also in its role inshaping Chinese history and culture. Chinese history and archaeology are therefore keysto understanding the process of the development of human society and civilization. Unfor-tunately, Chinese cultural treasures have, both historically and in contemporary society,suffered heavy losses due to various reasons.

Most Chinese cultural property were taken abroad when Western colonial powers andimperialists pillaged China by means of war, robbery, looting, threat, fraud or other illegalacts. Since 1840, Chinese cultural relics began leaving China-just as quickly as the West-ern world arrived. The loss of Chinese cultural property overseas mainly occurred in thefollowing three forms: through the invasion of Anglo-French forces in 1860 and the EightAllied forces in 1900; through the 'cultural investigations' of archaeological sites in North-west China by Western explorers in the late 1 9 th and early 2 0th centuries; and through the

60 See Jennifer N. Lehman, "The Continued Struggle with Stolen Cultural Property: The Hague Convention, the

UNESCO Convention, and the UNIDROIT Draft Convention" (1997) 14 Ariz. J. Int'l & Comp. L. 527 at546.

61 See Adina Kurjatko, "Are Finders Keepers? The Need for a Uniform Law Governing the Rights of OriginalOwners and Good Faith Purchasers of Stolen Art" (1999) 5 U.C. Davis J. Int'l L. & Pol. 59 at 85-86.

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invasion of Japanese forces during World War Two.62 Statistics show that more than 10million Chinese cultural objects have been lost overseas, among which about 1.67 millionpieces are housed in more than 200 museums in 47 countries.63 Most of them are currentlyheld by museums or private collectors in the United States, United Kingdom, France, Japanand some Southeast Asian countries.64 These lost cultural treasures cover a wide range ofobjects, including painting, calligraphy, bronzewares, porcelain, oracle bone inscriptions,ancient books and records.

Since the founding of the People's Republic of China, the government has devoted manyresources to protecting its cultural property. Nevertheless, the worldwide popularity andhuge demand for Chinese cultural property, both domestically and abroad, has stimulatedan astonishing increase in illegal excavation and smuggling over the past 60 years. There arean estimated 400,000 archaeological sites in China, most of them scattered throughout theundeveloped countryside where protection is difficult. The looting and destruction of thesearchaeological sites pose a real threat to the cultural preservation of Chinese culture. Statis-tics indicate that over the past two decades, more than 300,000 ancient tombs have beenlooted, resulting in the loss of millions of Chinese cultural relics. 65 In recent years, theft ofcollections from cultural institutions such as museums and monuments has increased signif-icantly. According to a report in 2004, theft of cultural property increased 80 percent fromthe previous year, while only 20 percent of the culprits were apprehended.6 6 Smuggling isalso serious. In terms of monetary value, cultural relics are thought to be the largest singleclass of items smuggled out of China .67 From 1991 to 2000, over 100,000 pieces of smuggledartifacts were seized by Chinese customs. Although many archaeological artifacts destinedfor abroad have been identified and intercepted by Chinese customs authorities, others aresuccessfully smuggled abroad for sale on the international market. Even worse, the smug-gling of cultural relics has become increasingly organized and internationalized, with manycriminal gangs organizing their own 'logistics networks' to supply international demand.

The looting and smuggling of so many artifacts from archaeological sites and monumentscompromise academic study and the knowledge that can be gained from proper excavationand removal, causing great damage to the interpretation of Chinese cultural heritage. Toprevent the widespread illegal trafficking of artifacts, the legal protection of cultural propertyis indispensible. After more than half a century of persistent efforts, China has now formedits own legal system for cultural property protection.

B. Legal Protection of Cultural Property in New China

Since its formation on 1 October 1949, the Chinese Government has attached great signifi-cance to the protection of its cultural heritage and has instituted a system of laws, regulations,

62 See Sun Bo, "To Repurchase Cultural Property Illegally Taken Overseas Is to Connive Activities of Illegal

Excavation or Smuggling: An Interview with Shan Jixiang, Director of the State Administration of CulturalHeritage", online: China Cultural Heritage Net <http://www.ccrnews.com.cn/100004/100013/22364.html>.

63 "More than 10 million Chinese cultural relics lost overseas: report" People's Daily (30 January 2007), online:

<http://english.peopledaily.com.cn/200701/30/eng20070130_345934.html>.64 For example, in terms of Chinese paintings, the Metropolitan Museum of Art in New York claims the

biggest quantity, while the British Museum boasts the best-quality paintings. As for porcelain, the Guimetmuseum of France is famed for having the best collection of Asian art works. In the United States, thou-sands of large ancient Chinese bronze wares can be found, including at least a thousand extraordinarypieces. "Chinese Experts Demand Return of Cultural Relics" People's Daily (27 January 2003), online:<http://english.peopledaily.com.cn/200301/22/eng20030122_110589.shtml>.

65 See Lu Jiansong, "At the Back of an Overflowing Black Market in Cultural Relics" (12 August 2003), online:chinacourt.org <http://wwv.chinacourt.org/htmllarticle/200308/12/74409.shtml>

66 "State Administration of Cultural Heritage: Of the Thirty-Six Theft Cases of Cultural Relics ThisYear, More Than Eighty Percent Have Not Been Detected" People's Daily (28 December 2004), online:<http://www.people.com.cn/GB/shizheng/1027/3084817.html>.

67 "China: Stolen Bust Seized in US" China Daily (15 June 1998).

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measures and instructions to protect cultural relics. The legal basis for the Chinese govern-ment to regulate cultural property is found in article 22 of the Constitution of the People'sRepublic of China,68 which provides that the State, in addition to promoting literature andthe arts, "protects places of scenic and historical interest, valuable cultural monuments andrelics 69 and other important items of China's historical and cultural heritage." ThoughChina has a long legislative history of enactments regulating cultural property, the Law ofPeople's Republic of China on Protection of Cultural Relics (recently revised in 2007)70

is generally considered the most effective national legislation for cultural property protec-tion. Additionally, the Criminal Law of the People's Republic of China of 199771 alsocontains articles on punishment of criminal activities involving cultural property. Otherregulations and rules issued by relevant authorities, such as the State Council, State Admin-istration of Cultural Heritage and Cultural Ministry, also constitute an important part ofthe legal efforts to protect cultural property. Moreover, special administrative units to pro-tect cultural property have been established throughout the provinces, autonomous regions,municipalities, counties and cities. A brief survey of the Chinese legal system for protec-tion of cultural property, focusing on the Law of 2007 and the Criminal Law of 1997,follows.

1. National ownership of cultural property

The Law of 2007 clearly establishes national ownership of cultural relics as the legal basisfor their regulation in China. According to article 5, all cultural relics, whether remain-ing underground, in the inland waters or territorial seas, within the boundaries of Chinabelong to the state. Ancient sites, tombs, cave temples and those immovable culturalrelics that have been designated for protection by the state-such as memorial buildings,ancient architectural structures, stone carvings, mural paintings and typical buildings ofmodern and contemporary times-are, unless otherwise provided for by the state, ownedby the state. State ownership is also vested on those movable cultural relics that are: (1)unearthed within China (except when otherwise provided); (2) in the collection and underthe caretaking of state-owned cultural collection entities, as well as other state organs,armed forces, state-owned enterprises and public institutions; (3) collected and purchasedby the state; and (4) donated to the state by citizens, legal persons and other organizations.In addition, state-owned immovable cultural relics may not be transferred or mortgaged,while privately-owned immovable cultural relics may not be transferred or mortgaged toforeigners.

72

Article 5 clearly states that the ownership of state-owned cultural relics is protected by lawand shall not be infringed upon. The national ownership declarations contained in article 5of the Law of 2007 create a valid property interest in Chinese cultural relics concerned. Aslong as the national ownership law is sufficiently clear and unambiguous, a valid ownershipright is created and inherent in this law, regardless of whether the state has possession or evenknowledge of the cultural object prior to its illegal removal. A clearly prescribed nationalownership law is solid ground for declaring "stolen" those cultural relics illegally removedand is therefore indispensible for source nations like China to protect cultural property.

68 Constitution of the People's Republic of China (1982) (adopted at the 5th Session of the 5th National People's

Congress on 4 December 1982).69 "Cultural relics" refer to objects with historical, scientific and artistic values ranging from tombs and grottos

to buildings and manuscripts.70 Order of the President No. 84 (29 December 2007) [Law of20071.71 Order of the President No. 83 (14 May 1997) [Criminal Law of 19971.72 Law of 2007, supra note 70, arts. 24 and 25.

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2. Export control of cultural property

It has become common practice for a nation to regulate the export of its cultural property bylegislative and administrative means, though the forms of export regulation differ betweennations. 73 The export control of cultural relics in New China dates back to 1950, whenthe government promulgated preliminary measures74 aimed at preventing the flow abroadof valuable cultural relics. These preliminary measures paved the way for the subsequentcomprehensive administration of cultural relics export in China. Subsequently, two orders75

controlling the export of important Chinese cultural relics were adopted, the first in the early1960s, and the latter in the 1970s. As of the 1980s, a series of notices issued by the StateCouncil and the State Administration of Cultural Heritage have further stressed China'spolicy on the export of cultural relics.

With the adoption of the Law of People's Republic of China on Protection of CulturalRelics in 1982,76 cultural relics were, for the first time, regulated by formal law. This law hasbeen amended three times for clarification purposes, the most recent reflected in the Law of2007. Generally, the Law prohibits the export of cultural relics that are either state-ownedor "precious", 77 with limited exceptions for exhibitions. 78 The newly amended Standard ofExamination and Verification for the Export of Cultural Relics of 20077' establishes a relicdating system for the export of cultural relics. According to these Standards, all categoriesof cultural relics that were produced before 1911 may not be exported. However, for"ordinary" cultural relics having certain historical, artistic and scientific values, the date is1949.

Cultural relics allowed to be taken out of China are subject to examination and verifica-tion. Thereafter, those permitted to be exported will be accompanied by an export permit.The production of such permit is required by all exporters, who must clear their relics atcustoms.

80

Authorisation must be obtained from the State Council when Grade-one cultural relicsintended for exhibition abroad exceed 120 in number or account for 20 percent of all objectsexhibited abroad. 81 The maximum period for exhibition abroad is one year.82 The soleexisting or fragile relics among the Grade-one cultural relics are prohibited from being takenout of China for exhibition. 83 Moreover, cultural relics which have not been exhibited inChina are not allowed to be exhibited abroad.8 4

73 For a detailed discussion of the principal forms of export regulation on works of art, see Bator, supra note 34

at 314-17.74 Preliminary Measures for Prohibiting the Export of Precious Cultural Relics and Books, Order of the State

Council No. 12 (24 May 1950).75 Reference Standards of Appraisal for Export of Cultural Relics, Order of the Cultural Ministry (approved 12

July 1960; invalidated 5 June 2007) [Order of 1960]; Trial Measures for Control of the Export of CulturalRelics with Special Permission, Order of the State Bureau of Cultural Relics (approved 31 July 1979; abolished15 January 2008) [Order of 1979].

76 Order of the Standing Committee National People's Congress No. 11 (19 November 1982).77 China has, according to the grading system, long classified movable cultural relics into "precious" cultural relics

and "ordinary" cultural relics. Precious cultural relics are further broken down into Grade-one, Grade-two,and Grade-three cultural relics. See Rating Standards for Cultural Relics Collections, Order of the Ministryof Culture No. 19 (10 May 2001) [Rating Standards for Cultural Relics of 2001].

78 Law of 2007, supra note 70, art. 60.79 Order of the State Administration of Cultural Heritage (5 June 2007) (substituting the Order of 1960).80 Law of 2007, supra note 70, art. 61.81 Implementation Measures of the Law of People's Republic of China on Protection of Cultural Relics, Order

of the State Council No. 377 (13 May 2003), art. 48 [Implementation Measures of 2003].82 Law of 2007, supra note 70, art. 50.83 Ibid., art. 62.84 Implementation Measures of 2003, supra note 81, art. 49.

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3. Regulation of the cultural property market

One of the prominent features of the Law of 2007 is the legalization of private transactionsand the creation of a licit cultural property market in China. Individuals and organizationsfrom China may collect cultural relics obtained through any of the following methods:(1) legal inheritance or gift; (2) purchase from cultural relics shops; (3) purchase fromcultural relics auction enterprises; (4) exchanges or transfers between individual citizenspursuant to law; and (5) other methods authorized by the central government. Culturalrelics lawfully collected and owned are protected by law and can be circulated according tolaw.8" The ownership of individuals is protected by law.8 6 The Law of 2007 also makes itclear that trade in state-owned cultural relics, privately owned valuable relics in institutionalcollections, or immoveable cultural relics, is prohibited.8 7

Cultural relics stores and auction enterprises are also regulated by the Law of 2007.Firstly, the Law prohibits cultural relics shops from running auction enterprises, and viceversa.88 Secondly, each cultural relic must be examined and verified prior to sale or auction.Thirdly, the relevant authorities may designate state-owned collection institutions to enjoya priority right in purchasing the valuable objects up for auction during the mandatoryexamination, and the purchase price is negotiated and determined by the representative ofthe collection institutions and the grantor of the cultural relics. 89

In recent years, more regulation of the cultural property market has been put into effectthrough government administration of the cultural relics market. By creating a system thatallows for trade in cultural relics among individuals, organizations, cultural relics shopsand auction houses, the Law of 2007 has helped to meet the demand for legitimately tradedChinese cultural relics.

4. Record keeping and theft reporting system

According to the Law of 2007, museums and other institutions with collections of culturalrelics should classify the cultural relics into different grades, compile a file for the culturalrelics and establish a strict system of control. 90 Excavated archaeological relics shall beregistered, properly preserved and turned over for collection. 9 1 Cultural relics stores andauction enterprises are required to keep the records of the cultural relics they purchase, sellor auction. 92 In China, a national inventory of archaeological collections began in 1989to enhance the protection of collections. Since April 2007, the third national survey ofcultural relics has been started. To promote digital management of collections of publicmuseums, a project for constructing a database management system began in 2001. Todate, the database has recorded information on more than 1,540,000 cultural relics.93 Inaddition, another database on cultural relics lost overseas was established, cataloguing dataon more than 20,000 lost relics. These undertakings will help realize the modernization ofthe system of national museums, safeguard the safety of cultural relics, and provide valuableinformation for their (hypothetically needed) recovery.

The Law of 2007 also requires collection institutions to report immediately to publicsecurity organs and other competent authorities when cultural relics in cultural institutions

85 Law of 2007, supra note 70, art. 50.86 Ibid., art. 6.87 Ibid., art. 51.88 Ibid., arts. 53 and 54.89 Ibid., art. 58.90 Ibid., art. 36.91 Ibid., art. 34.92 Ibid., arts. 56 and 57.93 "The Key National Cultural Relics Institutions Will Realise Digitalization of Archives in Five Years" (17June

2005), online: <http://www.whj.zhaoyuan.gov.cnlshow.php?id=169>.

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are stolen, robbed or missing.94 The reporting system is designed to help prevent furtherlosses of cultural relics. Meanwhile, requests for assistance should be submitted to all avail-able resources, including foreign enforcement agencies and international organizations. Inall, the record keeping and theft reporting system could potentially make state administra-tors of cultural relics alert of any stolen cultural relics emerging on the market and providea way to trace where a particular piece came from.95

5. Rewards and legal liabilities

The Law of 2007 further strengthens the enforcement powers granted to various govern-mental organs. These organs share the responsibility of protecting cultural relics withintheir power and are granted the power to correct offences involving cultural relics. Vari-ous civil and administrative responsibilities with different degrees of punishment, includingwarnings, fines, restitution for damages and seizure of any illicitly obtained cultural objects,are provided for in detail in this law. 96 Additionally, article 12 of the Law of 2007 alsoprovides for the reward of those who: (1) earnestly implement laws and regulations oncultural relics and make remarkable achievements in protecting cultural relics; (2) struggleagainst criminal activities in the interest of protecting cultural relics; (3) donate importantcultural relics in their own collections to the State; (4) timely communicate information on,or delivery of, any cultural relics discovered; (5) make major contributions in archaeologicalexcavations and other outstanding achievements in the field of cultural relics protection.

The Criminal Law of 1997 makes specific provision for protecting cultural relics againsttheft, smuggling and other criminal activities. Section 4 of the Criminal Law of 1997,entitled "Crimes against Control of Cultural Relics", imposes criminal liability for damagingor destroying cultural property, private selling, selling for profit, selling by a museum, orillegal excavation of ancient tombs or remains.9 7 There are further sections that providefor serious consequences for cross-border transportation of "prohibited cultural relics" 9 8

out of China and for theft of cultural relics., 9 Criminal penalties for actions prohibitedby the Criminal Law of 1997 range from fines and confiscation to prison sentences, andin serious cases, even death. The punishment for each criminal activity is closely linkedto the seriousness of the offense committed and the grade of cultural relics in question.Exemplary of this is article 328, which explicitly lists various forms of conduct, such asrepeated illegal excavations or leading a conspiracy to illicitly export cultural property,warranting imprisonment or even death.

C. Improving the Situation of Cultural Property Protection

Faced with the critical situation of cultural property protection, China has intensified effortsin its fight against the illegal flow of cultural property. Nevertheless, pillage, theft andsmuggling continue to be a real problem in contemporary China. More needs to be done.Bearing in mind the two principles discussed in Section C of Part II, it is also necessary toadhere to both principles of "protection" and "exchange" in order to improve the protectionof Chinese cultural property in the new era. In the Chinese context, "protection" means theimprovement of domestic regulations on cultural property, while "exchange" emphasizes thepromotion of international co-operation with regard to the distribution of cultural property.

94 Law of 2007, supra note 70, art. 48.95 See Taylor, supra note 46 at 246.96 Law of 2007, supra note 70, arts. 64-78.97 Criminal Law of 1997, supra note 71, arts. 324-28.98 Ibid., art. 151.99 Ibid., arts. 263-64.

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One needs to find a delicate balance between the domestic protection and the internationalexchange of cultural property. Moreover, a concerted effort is needed to educate the publicand arouse appreciation for the value of cultural property.

1. Improving domestic protection and regulation of cultural property

In order to establish more effective legal systems for controlling illicit trafficking of culturalproperty, improving existing legislation and regulations on cultural property protection isnecessary.

(a) Adhering to the basic principles of protection: The Law of 2007 lays down four basicprinciples to be followed for protecting cultural property, which may be summarized as:focusing on protection; giving priority to rescue; utilizing reasonably; and strengtheningmanagement. 100 On one hand, more efforts are needed to focus on the "protection" and"rescue" of cultural relics. To ensure their safety and integrity, cultural relics should remainin their place of origin and should be returned to their original context once separatedfrom it. On the other hand, rational "utilization" of cultural relics is allowed, provided itssafety is given priority and guaranteed. Rational use may take many forms, such as exhibi-tion abroad. Moreover, "management" safeguards the effective protection and reasonableexploitation of cultural relics. In all, the four principles form the basis on which protectionand regulation of cultural property is built upon. In order to better protect Chinese culturalrelics in the new era, more effective measures must be taken.

(b) Clarifying definitional vagueness of certain terms: Some of the definitional problemsof the Law of 2007 and the Criminal Law of 1997 need to be solved.' For example, inrelation to the definition of "cultural relics", the Law of 2007 gives an enumerative andexhaustive list of the objects to be protected by the law, leaving the risk of definitionalgaps. Since a general definition of "cultural relics" can fill gaps in protecting (some as yetdiscovered) cultural relics, adopting a mixed definition combining the enumerative list witha general definition may be a wise prescription. This approach has been adopted, interalia, in the 1970 UNESCO Convention and the 1995 UNIDROIT Convention. Second,the differences between "ordinary" and "precious" relics are not made clear in the Law of2007. Though the Rating Standards for Cultural Relics of 2001 sets out specific rules forwhat constitutes Grade-one "precious" relics, 10 2 there are currently no standards for thegrading and classification of Grade- two and Grade-three "precious" relics. Third, there isno objective standard in deciding the "seriousness" of an offense involving cultural relicsin the Criminal Law of 1997. As previously stated, the punishment for criminal activitiesinvolving cultural relics depends on the grade of the relic in question and the seriousnessof the offense committed. Unfortunately, there is no clear definition for what constitutes"serious", "extremely serious", or "heinous" offenses under the relevant provisions of theCriminal Law of 1997. Therefore, a clear standard is needed to correct the vagueness of theseterms. In any case, some determinative criteria should be provided, such as the value andnumber of the cultural relics damaged, the degree of such damage and the repeated natureof illegal activity. These are all factors to be considered in determining the "seriousness" ofthe offense. Lastly, further co-ordination between the Law of 2007 and the Criminal Lawof 1997 is badly needed. For example, according to article 2 of the Law of 2007, "places ofhistorical interest or scenic beauty" are not defined as "cultural relics"; while according toarticle 324 of the Criminal Law of 1997, conduct that intentionally destroys state-protected

100 Law of 2007, supra note 70, art. 4.101 For a discussion of the shortcomings of and proposed improvements to Chinese legislation, see Michael J.

Dutra, "Sir, How Much Is That Ming Vase in the Window?: Protecting Cultural Relics in the People's Republicof China" (2004) 5 Asian-Pacific L. & Pol. J. 62 at 63- 64.

102 See Rating Standards for Cultural Relics of 2001, supra note 77, Index.

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"places of historical interest or scenic beauty" does constitute a crime against control of"cultural relics". Hence, the two articles contradict each other. As mentioned above, ageneral definition of cultural relics which covers all categories of objects that have artistic,historical, scientific, religious, or social significance, will correct this situation.

(c) Making law enforcement more effective: The central governmental agencies responsi-ble for cultural relics, including the State Administration of Cultural Heritage, CulturalMinistry, Ministry of Public Security, General Administration of Customs and the StateAdministration for Industry and Commerce, should make concerted efforts to create a long-term and quick-response mechanism for cultural property protection. Administration atvarious levels to protect cultural relics is required to best preserve and ensure the safety ofthose cultural relics within their respective administrative jurisdictions. Special funds forthe preservation of cultural relics should be established and allocated to law enforcementagencies in order to better fund, equip and train them. Export control of cultural propertyshould be strictly carried out according to law. Authorized agencies responsible for theexamination and verification of cultural relics intended for export should be set up at eachprovincial level in the near future. Also needed badly is a database on stolen cultural relics,which will provide sufficient information and evidence for recovery.

(d) Establishing incentive systems for protecting cultural property: Legal and policy incen-tives should be worked out to mobilize the public to actively participate in the protectionof cultural relics. Firstly, differences between government awards for the turning over ofchance finds and the price obtained on the black market should be narrowed or eliminated.Some authors have even suggested that the best way for China to prevent illegal activitiesinvolving cultural relics is to afford the finders of cultural relics higher material rewards. 0 3

Additionally, moral rewards for turning over chance finds should also be greatly encour-aged. Secondly, tax reduction incentives, such as those in the United Kingdom, 10 4 mayencourage individuals to keep their private collections at home or transfer them to publiccollection institutions. Thirdly, tariffs for the import of cultural relics should be reduced inorder to attract import of foreign cultural objects and promote the return of Chinese culturalproperty from abroad. Preferential tax measures should be taken into consideration in thefuture formulation of specific regulations on the management of cultural relics.

(e) Regulating the auction market in cultural property: The auction market is the primaryplace where cultural relics can be traded. Without a well-regulated market, the qualityof cultural relics to be auctioned will not be warranted and cultural relics without legalorigin may be illegally laundered by way of auction. To ensure the healthy developmentof the market, firstly, supervision of auction houses should be further strengthened. Thewhole process of auction should be under control. Secondly, auction licensing and pro-fessional qualification systems should be strictly observed. Auction houses without licensesshould not be allowed to engage in any auction activity.'0 5 Thirdly, transactions concerningGrade-one cultural relics should be under strict control and cultural relics whose exchangeis prohibited by law must not enter the auction markets. Fourthly, a neutral non-profitinstitution should be established to evaluate cultural relics to be auctioned. Only evaluatedand registered cultural relics should be legally traded. Lastly, training and self-discipline ofauction professionals should be strengthened.

103 "Cultural Property Forum: The Export Policies of China, Korea, and Japan" (9 April 2003), online: Cultural

Heritage Preservation in Asia <http://www.asiasource.org/culturalheritage/culturalproperty.cfm>.104 See Bator, supra note 34 at 317. For a more detailed analysis of the British systems of control for the export

of works of art, especially the tax incentives designed to encourage the retention of works of art in the UnitedKingdom, see Michael Polonsky and Jean-Franqois Canat, "The British and French Systems of Control of theExport of Works of Art" (1996) 45 Int'l & Comp. L. Q. 557 at 561-76.

105 "The Fifteen Years of Auction Market for Works of Art" (24 March 2008), online: Wenwu China <http:/!www.wenwuchina.com/news/list4/detaill56/21966.html>.

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2. Promoting international exchange and co-operation on cultural property

(a) Adopting liberal attitudes toward the export of cultural property: The idea of the exportof cultural relics is not new in China. As early as 1974, a circular issued by the StateCouncil pointed out that those ordinary cultural relics which are of relatively recent times,for which there are plenty of replicas and which are not valuable enough for collection, maybe exported in an organized way. 10 6 The 1979 trial measures for the export of culturalrelics with special permission 10 7 emphasized that "specially permitted export" of culturalrelics should be allowed in order to increase foreign currency exchange so as to support thedevelopment of socialist modernizations. Accordingly, those replica below Grade-three andwithout conservational value at home were permitted to be exported. 0 8 Since the 1990s,control over the trade in cultural relics has been increasingly relaxed in China. The Lawof 2007 recognizes the right of private ownership of cultural relics and the need for a licitmarket to exist. Wider access to Chinese cultural relics will promote the understanding andappreciation of China and its culture by more people in the world. Hence, the exchange andexport of China's cultural relics is necessary. A careful and prudent selection of those culturalrelics intended for export is required. Such selection should be based on each relic's culturalsignificance. Generally, cultural relics with redundant replica and lower quality pieces canbe made available for sale. Their sale abroad may raise more money for improving thepreservation of cultural relics at home. By retaining the most important cultural relics athome while allowing the least important ones to be exported abroad, a proper balance isstruck between protection and exchange of cultural property.

(b) Increasing international exchange of cultural property: China attaches great importanceto the international exchange of cultural property. Since its opening-up and reform, Chinahas actively participated in the formulation of international conventions on cultural heritageprotection and has by far ratified most of them. In addition, China has become a member ofthe most important international organizations specializing in cultural heritage protection,such as UNESCO and the International Council on Museums (ICOM). Large-scale culturalproperty exchange with foreign nations concerning archaeological excavation, technologytransfer, financial assistance and professional training, have been carried out and made greatachievements. For example, joint archaeological excavations with Cambodia, Mongolia andKenya have been highly praised by the international community. Overseas exhibitions ofChinese cultural relics have increased significantly. Over the last 30 years, more than athousand exhibitions have been held in various countries, which received over 100 millionforeign viewers.

Art is a good ambassador. It stimulates interest in, understanding of, and admirationfor a country.10 9 International exchange of cultural property has made Chinese culturalrelics and traditional culture viewed and appreciated worldwide. As China grows as aninternational player, interest in Chinese cultural relics abroad will rise. Therefore, moreforms of cultural exchange should be encouraged and conducted on a much larger scale inthe future. The international exchange of Chinese cultural property will continue to enrichthe intellectual and spiritual life of the people around the world and eventually contributeto the international protection of cultural property.

106 Circular Concerning the Opinion on Strengthening Cultural Relics Commercial Administration and Imple-

menting the Policy on the Protection of Cultural Relics, Circular of the State Council (16 December1974).

107 Order of 1979, supra note 75.108 Ibid., arts. 2-3.109 See Bator, supra note 34 at 306.

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(c) Recovering lost cultural property by way of international co-operation: As mentionedabove, China has suffered heavy losses of cultural property due to various reasons. Mea-sures must be taken for China to recover its lost cultural property. China has been seekinginternational co-operation in retrieving cultural relics by liaising closely with UNESCO,International Criminal Police Organization (Interpol), the World Customs Organizationand other inter-governmental or non-governmental organizations. China also negotiatedand signed bilateral protocols with countries, including Peru, India, Greece, Italy and theUnited States, on issues concerning the prevention and prohibition of theft, illegal excava-tion, smuggling and illegal import of Chinese cultural relics. In this respect, the bilateralagreement recently concluded in January 2009 between China and the United States11 °

imposing restrictions on importation of certain categories of archaeological materials fromChina, is truly a great step forward. The agreement establishes means of co-operation toreduce the incentives for archaeological pillage and illicit trafficking in cultural objects thatthreaten China's ancient heritage. 11'

In fact, so far as the return of Chinese cultural relics is concerned, remarkable achieve-ments have been made with the help of the provisions of relevant international conventionsand by way of bilateral co-operation. For example, China has successfully recovered manyillegally exported cultural relics from overseas under the principles of related conventionsand protocols. The successful recovery of the Marble Wall Relief from the Wang ChuzhiTomb is an excellent example of bilateral co-operation between China and the United Statesunder the 1970 UNESCO Convention.'12 More recently in April 2008, a total of 156 Chi-nese cultural relics smuggled to Denmark were returned to China in accordance with the1970 UNESCO Convention." 3 Such bilateral co-operation in repatriating looted treasureswill help deter looting and trafficking and ultimately promote preservation and due respectfor cultural property.

In the future, China should further take advantage of the dispute resolution mechanismsprovided in relevant international conventions to recover lost cultural property throughlegal and diplomatic means. We should, on one hand, remain committed to claiming thosecultural relics illegally moved, while on the other, take an active part in talks and negotiationswith those parties concerned. Meanwhile, joint efforts taken together with other sourcenations suffering from heavy losses are needed in order to form the positive atmospherefavourable to recovery and return. We shall see more Chinese cultural property lost overseasreturn home in the near future.

3. Educating the public on the importance of cultural property

The Law of 2007 emphasizes that education on cultural relics protection should be enhancedin order to raise the sensitivity of the Chinese people to cultural heritage protection. 14 TheChinese government has been very active in promoting cultural heritage protection throughpublic education. For example, in July 1989, the Ministry of Culture and State Adminis-tration of Cultural Heritage jointly issued a national promotion outline calling on everyone

110 Memorandum of Understanding Between The Government of The United States of America and The Govern-

ment of The People's Republic of China Concerning The Imposition of Import Restrictions on Categories ofArchaeological Material from The Paleolithic Period Through The Tang Dynasty and Monumental Sculptureand Wall Art At Least 250 Years Old (14 January 2009), online: International Cultural Property Protection<http://culturalheritage.state.gov/ch2009MOU.pdf>.

1 "A New Agreement to Protect the Archaeological Heritage of China", online: International Cultural PropetyProtection <http://culturalheritage.state.gov/whatsnew.html>.

112 For a brief discussion of this event, see Dutra, supra note 101 at 63-64.113 "Recent examples of successful operations of cultural property restitutions in the world", online: UNESCO

<http://portal.unesco.orgculture/en/ev.php-URL-ID=36505&URL-DO=DO TOPIC&URL-SECTION=201.html>.

114 Law of 2007, supra note 70, art. 11.

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to cherish the cultural heritage of the motherland. In recent years, the State Administrationof Cultural Heritage has conducted a nationwide public awareness campaign, during whichexperts from Interpol, the World Customs Organization, ICOM, Art Loss Register11 andother organizations were invited to China for an exchange of opinions.

Museums play an important role in educating the public. By the end of 2007, over2,400 museums, both public and private, have been established in China. Each year, thesemuseums hold more than 100,000 exhibitions and receive over 180 million visitors.1 16 Since2008, state-run museums and memorial halls have been opened to the public for free. Topromote appreciation for China's rich and diverse cultural heritage, a national "CulturalHeritage Day" is celebrated annually on the second Saturday of June since 2006. Educatingthe youth is particularly important. The Suzhou Declaration on Enhancing Youth Educationon World Heritage Protection, adopted at the 28th World Heritage Conference, calls on theinternational community to enhance youth education on the protection of world heritage. 117

Education on Chinese cultural relics is becoming a hot topic in China today as a balancebetween national development and the preservation of traditional culture must be found. Torenew people's interest in their cultural history and traditions and educate people to care forthis grand cultural heritage, governments at all levels must take an active part in increasingpublic awareness on the importance of cultural relics protection, raising appreciation for thenon-economic values of cultural property, and making known the relevant provisions relatedto cultural relics protection and possible punishments for their violations. Professionaltraining of those who are engaged in cultural relics protection, such as administrators,practitioners, law enforcement officers and technical personnel, should be stepped up invarious ways in order to make their daily work more effective. Though education cannotsolve all the problems we face today immediately, it does act as an effective means forcultural property protection in the long run. Therefore, education is the key to the futurepreservation of China's cultural property. 1 8

V. CONCLUSION

Though hard to define, cultural property is indeed unique. The value of cultural propertyis derived from the cultural significance inherent in it. Broadly speaking, cultural prop-erty constitutes one of the basic elements of national culture and human civilization. Thisexplains to a great extent why it should be entitled a higher level of respect and protectionthan other forms of property. The issue of protecting cultural property has emerged inrecent years, attracting the eyes of the world. Faced with a worsening situation of culturalproperty protection, consensus has been reached on the importance of protecting culturalproperty, including the preservation of the past, respect for cultural traditions, provision ofa cultural identity, and access to the glories of human achievement. Hence, internationalco-operation has become one of the key elements for the effective protection of culturalproperty. A series of principles, resolutions and conventions were adopted to deal with thisproblem. As such, the 1970 UNESCO Convention and 1995 UNIDROIT Convention-theprinciple international instruments on the protection of cultural property-are the productof long and intense international co-operation.

Though many legal and practical difficulties have prevented the widespread adoptionof certain resolutions or conventions, all of them deserve respect and should be put into

115 For more information about Art Lost Register (ALR), see, online: The Art Lost Register <http://www.

artloss.com/contentservices>.116 "Thirty Years of Cultural Relics Undertakings in China Since Opening-up and Reform" (29 December 2008),

online: State Administration of Cultural Heritage <http:llwww.sach.gov.cn/tabid/786/Default.aspx>.117 "World Heritage Conference Concludes" (8 July 2004), online: <http://www.china.org.cn/english/

internationalI100621.htm>.118 See Dutra, supra note 101 at 94.

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force by all nations, in particular the market nations. Equally important is the increaseddialogue between source and market nations to foster mutual respect and understanding. Toaccommodate the conflicting interests among nations, the need of source nations to conservenational cultural treasures should be respected, while the rational desire for market nationsto have wider access to the cultural property of the world should also be recognised. It hasbeen accepted that certain types of exchanges of cultural property serve the greater interestsof all concerned parties. Hence, any legal system contemplated must strike a delicate balancebetween the protection and international exchange of cultural property.

As one of the most important source countries of cultural property, China has longundertaken to establish its own legal regimes to protect cultural property and prevent theillegal flow of Chinese cultural relics. However, China's rich historical and cultural heritageis now at risk, partially due to its huge demand in domestic and foreign markets. Looting,theft and smuggling of China's cultural relics is a real and continuing threat to China'scultural patrimony and national identity. To improve this situation, more practical andeffective measures must be taken to enhance the protection and regulation of cultural relicsat home. Meanwhile, international exchange of and co-operation in distributing culturalproperty can serve to arouse respect for Chinese cultural heritage abroad. We believe thatthese efforts will, on one hand, greatly benefit China in its fight against the destruction andillegal flow of cultural property, while on the other, contribute to the preservation of worldcultural heritage in the long run.

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(,1 2 1/,1(...as noted by lyndel v. prott, the legal definition of cultural 1 14 november 1970, 823...

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