Ariel Ye, Dong Ping, and Yang Weiguo of King & Wood’s Cross-border Dispute Resolution Practice
On Monday 23 February 2009, the Tribunal de Grande Instance of Paris in France heard an urgent application by a team of Chinese lawyers for an injunction to prevent the auction by Christie’s of two controversial ancient Chinese relics. It was not in dispute that the two bronze sculptures, one of a rat’s head and another of a rabbit’s head, had been looted by Anglo-French troops from the Old Summer Palace in Beijing during the Second Opium War in 1860 and had until recently been part of the collection of the late Yves Saint Laurent. The Tribunal nevertheless rejected the application. Subsequently, on Wednesday 25 February 2009, the sculptures were auctioned off for 14 million euros each to then-anonymous telephone bidders. The controversy is ongoing.
This incident demonstrates the legal difficulties faced by China generally in the retrieval of similarly looted, stolen or otherwise illicitly exported cultural artifacts from abroad. At present, China adopts the following three approaches in respect of such items:
1. repurchasing the items;
2. seeking the return of the items as gifts;
3. seeking the return of the items through diplomatic maneuvers or through the efforts of non-governmental organizations.
This appears to be the first time that China has attempted to seek repatriation of looted cultural property by means of litigation.
I. Overview of the Legal Obstacles to Repatriation of Looted Cultural Property
Several obstacles exist to the repatriation of such items through purely legal channels. These include:
(i) The lack of retroactive effect of relevant international conventions. At the time the 1860 looting took place, there were no written international conventions specifically prohibiting such looting campaigns. The conventions currently in force which now relate to this issue (set out below) are not retroactive, meaning that they only apply to actions which take place after the date on which the conventions became effective. Therefore, there is frequently no appropriate treaty framework upon which China can rely in its efforts to retrieve objects which may have been removed from its jurisdiction before certain periods in its history.
(ii) The limited binding force of relevant international conventions. The States Parties to the above-mentioned conventions are, for the most part, countries which supply, export, or are otherwise the source of cultural property. However, the countries against which China can legitimately claim for the repatriation of cultural property are relatively few in number, and the conventions have little or no binding force on certain countries in whose jurisdiction a great number of looted cultural properties now remain, such as the United Kingdom.
(iii) Difficulties in the proof of evidence. Since the circumstances in relation to looted cultural properties are usually both complicated and obscure, relevant specific evidence, such as the exact time the properties were looted and who committed the looting, will become more difficult to collect with the further lapse of time.
(iv) Provisions concerning holders in good faith. The longer looted or stolen cultural properties have been lost abroad, the more likely the present holders of those items will be deemed by the domestic law of that State as holders in good faith. In many countries, laws protect the holders in good faith rather than the original owners, despite the fact that the items may originally have been looted or stolen.
(v) Statutes of limitation. In the present case, time limitation provisions of the Civil Code and Civil Procedural Law of France prevent any further claims for the original ownership of the relics being heard. This is also likely to pose an insuperable obstacle in many domestic jurisdictions.
II. Relevant International Conventions on Protection of Looted Cultural Property
Nevertheless, the Chinese Government has entered into a series of international conventions with respect to the protection of cultural property. These include:
(i) The Convention for the Protection of Cultural Property in the Event of Armed Conflict (Hague 1954) and its protocols. Hague 1954 sought to prevent the destruction, theft, pillage and vandalism of cultural properties during periods of armed conflict and military occupation. Although its provisions were relatively general, it initiated the formation of international regimes regarding protection of cultural properties, and was broadly accepted as reflective of customary international law.
(ii) The Convention on the Means of Prohibiting and Preventing the Illicit, Import, Export, and Transfer of Ownership of Cultural Property (UNESCO 1970), which has been ratified and entered into by 102 States Parties thus far. UNESCO 1970 deals exclusively with the restitution of cultural objects, and is silent on the criminal punishment of offenders. While UNESCO 1970 has made strides in combating the lucrative black market for smuggled antiquities, it is non-retroactive and inapplicable to objects illegally exported before its “entry into force . . . in the States concerned.” UNESCO 1970 is considered to be the most important international convention regarding the prevention of illegal removal of cultural property.
(iii) The Convention on Stolen or Illegally Exported Cultural Objects (UNIDROIT 1995), which has been ratified by 32 States Parties thus far. UNIDROIT 1995 was drafted to in an attempt to induce more nations, such as the United Kingdom and other non-signatories to UNESCO 1970, to participate in the repatriation of looted cultural properties. UNIDROIT 1995 attempts to compel purchasers of stolen goods to return them to their “rightful” owner, even if the purchase was in good faith, and it requires “compensation for bona fide possessors who can establish due diligence.” Compared to the two former conventions, UNIDROIT 1995 has more operational flexibility.
In addition, China has signed a number of bilateral treaties with other countries in relation to the prevention of theft, and illegal import and export of cultural properties.
IV. Further Comments
The Chinese Government opposes public auctions of any illegally looted Chinese cultural property and insists on the repatriation of such property through international cooperation, making use of both legal and diplomatic channels in accordance with relevant international legal regimes and principles.
International practice would appear to indicate that diplomatic channels are a more effective means of retrieving looted cultural property. China has successfully retrieved thousands of looted cultural properties through international cooperation. However, the fact remains that under the current legal environment on the world stage, there is little practical help from international law available for countries like China to retrieve looted cultural properties from abroad, no matter how much leverage the relevant conventions may lend to any such diplomatic requests.