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2 (2008) 12 SYBIL 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 several decades. 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 property and to improve protection of cultural property at both national and international levels. This article, focusing on international protection of cultural property, provides three layers of analysis. First, it surveys arguments within the debate between two conflicting theoriescultural nationalism and cultural internationalism-before putting forward two principles to be followed in retrieving and protecting cultural property. Second, the main international conventions dealing with cultural property protection and dispute resolution will be analyzed, and their advantages and disadvantages examined. Finally, China is taken as a case study, exploring various 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 cultural identity of a nation, people or group, the protection of cultural property demonstrates respect for history, culture and tradition. As the demand for cultural property increases, illicit trafficking of cultural property continues to grow. As a result, the frequency of international disputes over the return of cultural property that was removed illegally is currently on the rise. 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 the illegal flow of cultural property and to improve the protection of cultural property at both the national and international level. Recognising that the single effort of one nation, no matter how diligent and intense, is not sufficient by itself to stop the illicit trafficking of cultural property, the international community has responded promptly, reinforcing bilateral as well as multilateral co-operation, which has become one of the key elements in the effective protection of cultural property. This paper, focusing on the international protection of cultural property, is divided into five parts, Part I being the introduction to the study. Part II briefly surveys some preliminary issues concerning the international protection of cultural property. For this purpose, it will examine the definition of cultural property as compared to cultural heritage, comment on 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 Scholarship Programme in January 2007, at UNIDROIT, Rome, Italy, under sponsorship from the Government of the Republic of Korea. I would like to thank the Korean Government and the staff of UNIDROIT for providing the financial support and research assistance which made my study at UNIDROIT possible. I am also grateful to Jason R. Bonin, Associate Editor of SYBIL, for his insightful advice on revision of this article. All errors are of course mine. HeinOnline S.Y.B.I.L

3 SINGAPORE YEAR BOOK OF INTERNATIONAL LAW (2008) basic principles for the international protection of cultural property. Part III analyses the two main international conventions on cultural property protection: the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property' and the UNIDR OIT Convention on Stolen or Illegally Exported Cultural Objects. 2 The main provisions of the two conventions will be examined, their advantages and disadvantages will be respectively analysed and proposals for their improvement will be presented. Part IV discusses strategies for China, one of the biggest source nations 3 of cultural property, to improve the protection of cultural property in the 2 1 St century. For this purpose, Chinese cultural property legislation will be examined briefly and proposals for improving cultural property protection in China will be presented. Finally, some concluding observations 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 of things that dealers deal in, collectors collect, and museums acquire and display". 4 Existing national and international legislative instruments differ in their criteria used to determine the categories of objects to be protected. In terms of international instruments, the first use of the term "cultural property" is found in the 1954 Hague Convention for the Protection of 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 every people". 6 In the later 1970 UNESCO Convention, cultural property is defined as property which, on religious or secular grounds, is specifically designated by each state as being of importance for archaeology, prehistory, history, literature, art or science, including but not limited to rare collections, antiques, historical monuments, religious objects and other items of importance to the culture or identity of a group of people. 7 Though the 1995 UNIDROIT Convention relates to the return of stolen or illegally exported "cultural objects", 8 most legal commentaries still use the term "cultural property". 9 Cultural heritage is another legal term employed in legal literature, as well as the more recent UNESCO instruments, for example, the Convention for the Protection of Underwater Cultural Heritage' and the Declaration Concerning the Intentional Destruction of Cultural Heritage of 17 October 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] June 1995, 34 I.L.M (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 and possessing a large domestic demand for cultural property. See John H. Merryman, Thinking About the Elgin Marbles: Critical Essays on Cultural Property, Art and Law (The Hague and Boston: Kluwer Law International, 2000) at John H. Merryman, "Cultural Property Internationalism" (2005) 12 Int'l J. Cult. Prop. 11 at May 1954, 249 U.N.T.S. 240 (entered into force 7 August 1956) [1954 Hague Convention]. 6 Ibid., art UNESCO Convention, supra note 1, art 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 November 2001, 41 I.L.M. 40 (entered into force 2 January 2009). HeinOnline S.Y.B.I.L

4 12 SYBIL INTERNATIONAL PROTECTION OF CULTURAL PROPERTY heritage is one of the most difficult problems confronting scholars today. 11 Compared with cultural property, which is a purely Western legal category and much narrower in both meaning and scope, 12 cultural heritage should be understood as much broader in scope in that it includes not only tangible things such as archaeological sites, monuments, or works of art, but also intangible elements such as traditional knowledge, skills and rituals. At the core of the legal definition of 'cultural heritage' is "heritage", emphasizing the importance of cultural beliefs, values and practices as a valuable resource; whereas the term 'cultural property' might suggest a focus on its economic value and less on its more important aspect of culture. Some have argued that the increasing use of the term "cultural heritage" is an important corrective to many of the limitations to applying the concept and law of property to culture. 13 Those who favour using cultural heritage as a definition tend to do so because "it creates a perception of something handed down; something to be cared for and cherished." 14 By general understanding, cultural heritage consists of things or traditions which are intellectual and the spiritual achievements of nations, peoples or groups., It is one of the basic elements for shaping national culture and world civilization. It includes not only tangible things, whether movable or immovable, 16 but also intangibles, such as oral traditions, performing arts and rituals, etc. 17 At the present stage of discourse, it seems impossible to reach consensus on a widely accepted definition of either cultural property or cultural heritage. 18 Nevertheless, these two terms can largely be used interchangeably at either the domestic or international level despite the technical distinction, since both notions are incomplete and must resort to other non-legal disciplines such as history, art, archaeology, ethnography, etc., in order to determine more specifically their respective content. 9 For the purpose of this paper, cultural property refers to 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 American scholar John Henry Merryman in the 1980s in discussing the Elgin Marbles debate. 20 He made a comparison between the 19S4 Hague Convection and 1970 UNESCO Convention and 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 See Janet Blake, "On Defining the Cultural Heritage" (2000) 49 Int'l & Comp. L.Q. 61 at Lyndel V. Prott & Patrick J. O'Keefe, "'Cultural Heritage' or 'Cultural Property'?" (1992) 1 Int'l J. Cult. Prop. 307 at Ibid. at See Prott, supra note 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 Heritage, 17 October 2003 (entered into force 20 April 2006), online: < /132540e.pdf>. "Intangible cultural heritage" includes the following domains: (a) oral traditions and 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 See Frigo, supra note 9 at For a detailed disscussion of the Elgin Marbles debate, see Jeanette Greenfield, The Return of Cultural Treasures, 3rd ed. (New York: Cambridge University Press, 2007) at See also John Henry Merryman, "Thinking about the Elgin Marbles" (1985) 83 Mich. L. Rev [Merryman, "Thinking about"]. HeinOnline S.Y.B.I.L

5 SINGAPORE YEAR BOOK OF INTERNATIONAL LAW (2008) property. One insists on retention on the basis of nationalism; the other emphasises adopting universalist protective measures. These two ways of thinking about cultural property are called cultural nationalism and cultural internationalism respectively Cultural nationalism The notion of cultural nationalism is based on the principle of national sovereignty, which emphasizes a nation's control over all people, things and conduct within its territory. Therefore, cultural property is an important and indispensable part of national treasures which cannot be separated from the source country or illicitly exported. Supporters of cultural nationalism insist on adopting rigid national cultural property ownership legislation and export control, while at the same time asking for the return of cultural property illegally removed from the source country. Proponents of cultural nationalism hold that since cultural property originated in source nations, it should be returned to its original owner once it has been stolen or illegally exported abroad. They also hold that a legal system in favour of the return of cultural property should be established by the international community. 2. Cultural internationalism Cultural internationalism holds that cultural property is independent of one nation's property rights and control over it. The interests in cultural property should be shared by all nations and peoples in the world. In the eyes of cultural internationalism, cultural nationalism is nothing but selfish possession of cultural property, which denies public access to and appreciation for the common heritage of mankind. Proponents of cultural internationalism hold that nationalist policies will lead to cultural impoverishment of people in other parts of the world. 22 According to Merryman, cultural internationalism consists of three elements: preservation, integrity and distribution. 23 An expert is of the opinion that all the three elements put forward by Merryman are essentially property conceptions, i.e. concerns are with the physical preservation of objects and their proper ownership. 24 One problem of discussing cultural property with such terminology is that it is misleading as it ignores the close link between cultural property and the broader cultural identity it represents. An expert once commented that it is the psychological and emotional connection to things, rather than their ownership, that is at the heart of cultural property concerns. When viewed in actionable legal 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 in discussing cultural property protection. Cultural nationalism carries with it a negative connotation, misunderstood by some as a pure emotional appeal by source nations; while cultural internationalism may mask the true intention of market nations in obtaining for their own interests the cultural property of source nations. 26 To better understand the conflict between cultural nationalism and cultural internationalism, the cultural aspect of cultural property should be recognized in order to better understand 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 See Merryman, "Thinking about", supra note 20 at 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 at See Daniel Shapiro, "Repatriation: A Modest Proposal" (1998) 31 N.Y.U. J. Int'l L. & Pol. 95 at See Mastalir, supra note 24 at HeinOnline S.Y.B.I.L

6 12 SYBIL INTERNATIONAL PROTECTION OF CULTURAL PROPERTY the other hand, to recognize the cultural aspects of cultural property does not necessarily mean the property aspect of cultural property should be ignored. Resolution of the conflict requires recognition of both cultural and property aspects. 27 A regulated cultural property trade is necessary-the point lies in how to define the ways and subjects of trade appropriately. Therefore, two principles should be followed in order to resolve disputes over cultural property. One is termed the protection principle, and the other, the exchange principle. 1. Protection C. Protection vs. Exchange Both cultural nationalism and cultural internationalism think it is important to protect and preserve cultural property, though they are divided on how it should be done. For cultural internationalists, cultural property should stay with nations who can afford the best available protections for preservation, while for cultural nationalists, cultural property should stay where it originated as only in its original settings can cultural property be best preserved 8 and understood. What then, is "protection"? Is it the same as "retention" 29 -often used by cultural internationalists to criticize cultural nationalism? Firstly, "protection" means that the safety and integrity of cultural property will be ensured. Dismembered cultural property should be returned to its original state. Once cultural property is destroyed, both the source nation and international community lose a valuable part of world heritage. Secondly, "protection" requires the preservation of messages cultural property carries with it because it is equally important to preserve the records of a civilization. 30 Separated from its cultural context, cultural property will lose cultural and historical significance. Thirdly, "protection" is not equal to "retention", as the latter requires all cultural objects to stay where they are and forbids any forms of movement of cultural property. Under some circumstances, it is necessary for certain cultural property to stay where it originated, especially archaeological objects. 31 But there are certain cultural objects whose physical safety will not be endangered by movement. It should be recognised that while international movement of cultural property does to a large extent threaten physical preservation of cultural property, legally regulated movement can, in most cases, promote cultural property protection. Therefore, the international movement and exchange of cultural property, based on recognized legal standards, should be encouraged. 2. Exchange The preamble to the 1970 UNESCO Convention states that the interchange of cultural property among nations for scientific, cultural and educational purposes increases the knowledge of the civilization of man, enriches the cultural life of all peoples and inspires mutual respect and 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 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 of International 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 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 < HeinOnline S.Y.B.I.L

7 SINGAPORE YEAR BOOK OF INTERNATIONAL LAW (2008) International Exchange of Cultural Property recognizes that the circulation of cultural property, when regulated by legal, scientific and technical conditions calculated to prevent illicit trading in and damage to such property, is a powerful means of promoting mutual understanding and appreciation among nations. 32 It can be inferred from these two documents that UNESCO pays close attention to the importance of the international exchange of cultural property. At present, there are at least two forms of international exchange: the loan exhibition and trade in cultural property. (a) Loan exhibition: A loan exhibition system is a good choice for nations reluctant to carry out market trade in cultural property. Loan exhibitions include not only redundant objects, but certain particular or representative cultural property. Through loan exhibitions, other nations will have access to loaned cultural property, while the loaning nation can raise money from the loan programme to improve its cultural property protection programmes. In addition, loan exhibitions may, to some extent, prevent museums and collectors from acquiring cultural property illegally, thus decreasing the demand for illegally taken cultural property. (b) Trade in cultural property: It has been suggested that the prohibition of trade in cultural property does not necessarily eradicate illegal trafficking in cultural property. Merryman holds that there is ample empirical evidence that retentive laws have not effectively limited the trade in cultural property, but merely determined the form that traffic takes and the routes it follows. 33 Some authors also take the view that by prohibiting or unduly restricting a licit trade in cultural property, source nations assure the existence of an active profitable black market. 34 Even proponents of cultural nationalism do not deny that certain cultural property with little cultural value can be freely traded in the market. Though restrictive policies on cultural property export adopted by most source nations do not necessarily encourage black market trade in cultural property to the extent pronounced by some scholars, 35 it will surely foster a licit market demand to put some selected or abundant cultural property up for legally 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 will decide which kinds of cultural objects are suitable for market trade. 36 Generally speaking, source nations can maintain control over their most valuable and representative cultural property. For redundant cultural objects that are not necessarily exclusively possessed by source nations, market trade seems appropriate. Not only can legally regulated trade in cultural property ensure control of source nations over the most important cultural property, it can also promote international exchange of cultural property, which will in turn widen public access to and appreciation for valuable cultural 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 a global 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 to 30 November 1976, online: < 33 Merryman, "Two Ways of Thinking", supra note 21 at Ibid., at See also Paul M. Bator, "An Essay on the International Trade in Art" (1982) 34 Stan. L. Rev. 275 at John Henry Merryman, "Cultural Property Ethics" (1998) 7 Int'l J. Cult. Prop. 21 at For a detailed discussion of licit and illicit trading in cultural property, see Merryman, "A Licit Trade", supra note 29 at 26. HeinOnline S.Y.B.I.L

8 12 SYBIL INTERNATIONAL PROTECTION OF CULTURAL PROPERTY co-operation and individual state responsibility, 37 it applies only to the protection and safeguarding of cultural property in the event of armed conflict. Since the 1970s, the international community's knowledge regarding the illicit flow of cultural property during peacetime is gradually increasing and new solutions are being pursued. Under the auspices of UNESCO, a series of declarations, resolutions and international agreements were adopted, greatly reinforcing international co-operation. The most important achievements include the 1970 UNESCO Convention and the 1995 UNIDROIT Convention. However, these achievements have had limited effect on curbing the illegal flow of cultural property. These limitations are partly due to political influence and partly due to defects in the international legal system itself. A UNESCO Convention Considering that the ever-increasing theft and illegal export of cultural property had greatly endangered efforts to protect cultural property, UNESCO adopted the 1970 UNESCO Convention at its 16th session on 14 November 1970 in Paris. As the first international instrument to recognise a general obligation upon States to take steps to prevent the illicit movement of cultural property, the 1970 UNESCO Convention defines cultural property clearly; lays down basic measures for prevention, restriction, protection and recovery of cultural 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 state parties themselves to take various protective measures, such as setting up an inventory of important public or private cultural property, 38 promoting the establishment and development of institutions to ensure the protection of cultural property, 39 establishing ethical guidelines for collectors and curators, 40 and taking educational measures to stimulate and develop respect for the cultural heritage of all States. 41 In general, the 1970 UNESCO Convention aims to control illegal flow of cultural property in three ways. Firstly, it requires state parties to adopt appropriate national legislation to protect national cultural property, prevent the illegal export and transfer of cultural property, and establish moral principles for cultural property exchange. Secondly, state parties should, in accordance with domestic legislation, prevent the import of cultural property illegally exported from other state parties. Thirdly, state parties should prohibit the export of cultural property without an export license. Particularly, article 6 establishes an export licence system to prevent the export of cultural property without such licences, while article 7 requires state parties to take measures to prevent museums and similar institutions from acquiring cultural property illegally exported from another state party. Article 7 also prohibits the import of cultural property stolen from museums, religious or secular public monuments, or similar institutions, and requires state parties to take appropriate steps to recover and return such cultural property, provided that the requesting state shall pay just compensation to the innocent purchaser. In addition to export control, article 9 requires state parties to take preliminary measures to 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's Progress in Fighting the Illicit Trade in Cultural Property" (2005) 19 Emory Int'l L. Rev. 227 at UNESCO Convention, supra note 1, art. 5(b). 39 Ibid., art. 5(c). '0 Ibid., art. 5(e). 41 Ibid., art. 5(f). HeinOnline S.Y.B.I.L

9 SINGAPORE YEAR BOOK OF INTERNATIONAL LAW (2008) party whose cultural patrimony is in jeopardy from pillage of archaeological or ethnological materials may call on other state parties who are affected. In all, article 9 of the 1970 UNESCO Convention is intended to provide a mechanism by which state parties will provide assistance 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 curbing illegal trafficking in cultural property, and has exerted great influence on the policy-making of 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 that are "specifically designated" warrant protection. Secondly, according to article 7, only source nations can initiate return claims, while individuals are not allowed to ask for the return of stolen or illegally exported cultural property. Hence, most commentators agree that the 1970 UNESCO Convention provides no private remedies. 42 Thirdly, the import and export control system is not complementary in that article 6 prohibits the export of cultural property without an export licence, but no article requires state parties to prohibit import 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 similar institutions, and listed as part of the inventory of such institutions, are prohibited from being imported. Thus the scope for import control is narrowed to a large extent. The narrower import control is, the wider the channel for cultural property loss. Fourthly, the 1970 UNESCO Convention is not retroactive. Hence it does not apply to cultural property illegally removed before the convention entered into force. Lastly, but certainly not of least importance, some terms employed in this Convention are vague. For example, it is not clear what the terms "specifically designated" or "just compensation" denote, or what the relation 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 function very well due to its vague terms and inconsistent structure. 43 Hence, a supplementary instrument was required, which would respond to the concerns of state parties who felt that the 1970 UNESCO Convention was not adequately precise. Indeed, even UNESCO itself has realised that the very flexiblity of the Convention has proved detrimental in that it 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 was adopted in the 1970s. America took the lead and became the first major art-importing country to implement the 1970 UNESCO Convention by enacting the Convention on Cultural Property Implementation Act 44 in Subsequently, Canada passed the Cultural Property Export and Import Act 45 in Only recently did several important cultural property importing nations enact domestic legislation to control the theft and illegal export of 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 See Merryman, "Two Ways of Thinking", supra note 21 at Convention on Cultural Property Implementation Act, 19 U.S.C. S (2000). 45 Cultural Property Export and Import Act, R.S.C. 1985, c. C 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. 233 at 241 (explaining the reasons for market states' recent accessions to the 1970 UNESCO Convention). HeinOnline S.Y.B.I.L

10 12 SYBIL INTERNATIONAL PROTECTION OF CULTURAL PROPERTY Illicit Export and Import of Cultural Property; 47 the United Kingdom enacted the Dealings in Cultural Objects (Offences) Act 2003 ;48 and Switzerland passed the Federal Act on the International Transfer of Cultural Property. 4 9 Although each piece of legislation has its own features, all measures taken by these legislative provisions to curb the illegal flow of cultural property are similar to those of the 1970 UNESCO Convention. Though the 1970 UNESCO Convention is far from perfect, its acceptance and implementation by more cultural property market nations will surely promote the return of lost cultural property to source nations and strengthen efforts in curbing illicit trafficking in cultural property. B UNIDROIT Convention: A New Perspective Recognizing the need to establish a comprehensive mechanism to prescribe clearer obligations with respect to the protection of cultural property against theft and illegal export, UNESCO requested UNIDROIT to draft an international convention in the 1980s based on the 1970 UNESCO Convention, with the expectation that this new convention will gain wider acceptance among cultural property market nations who are not state parties to the 1970 UNESCO Convention. After more than ten years of hard work, the 1995 UNIDROIT Convention was finally adopted on 24 June 1995 in Rome. The 1995 UNIDROIT Convention intends to facilitate the recovery and return of stolen and illegally exported cultural property. Some commentators have pointed out that this Convention strikes a delicate balance between compulsory return and compensation for a bona fide purchaser, 5 0 and it is also an attempt to reach a compromise between civil law systems which favour bona fide purchasers and common law systems, which give priority to original owners of cultural property. 1. Main provisions (a) Scope of application and definition: According to article 1, this Convention applies to claims of an international nature for the return of stolen or illegally exported cultural objects. Thus, the Convention has no application to claims arising from purely domestic transactions. "Cultural objects" are those which, on religious or secular grounds, are of importance for archaeology, prehistory, history, literature, art or science. Compared to the 1970 UNESCO Convention, "cultural objects" defined and protected under the 1995 UNIDROIT Convention need not be "specifically designated" by state parties. Thus, a wider 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 of cultural property which has been stolen shall return it." l Drafters of this Convention made a 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: < , c. 27, online: < 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 (Switz.). For the English version, see, online: UNESCO < CPTAen.pdf>. 5o See Ian M. Goldrich, "Balancing the Need for Repatriation of Illegally Removed Cultural Property with the Interests of Bona Fide Purchasers: Applying the UNIDROIT Convention to the Case of the Gold Phiale" (1999) 23 Fordham Int'l L.J. 118 at UNIDROIT Convention, supra note 2, art. 3(1). HeinOnline S.Y.B.I.L

11 SINGAPORE YEAR BOOK OF INTERNATIONAL LAW (2008) more favourable to curbing trafficking in cultural property. The focus is mainly on bona fide acquisition prevalent in civil law systems. Studies of many scholars concluded that the only way to prevent illegal flow of cultural property is to ensure the return of stolen cultural property to its original owners, though this will change the long-standing system of bona fide acquisition in the European legal tradition. 5 2 Recognizing these studies, the drafters of the 1995 UNIDROIT Convention stipulate in article 3 the general principle for return of stolen cultural objects. This principle should always be complied with, whether the possessor is bona fide or not. "Bona fide" is relevant only when compensation is considered. Secondly, the time limitation for return claims 5 3 was one of the most controversial parts in the Convention's drafting. Some nations opposed any time limit for initiating restitution claims; others insisted on prescribing much shorter limitation periods. These two viewpoints were proposed by source nations and market nations respectively. As a compromise, the Convention finally suggested two types of limitation periods. Generally, claims for stolen cultural objects should be brought within a period of three years from the time when the claimant knew the location of the cultural object and the identity of its possessor; and in any case, within a period of fifty years from the time of the theft. But according to article 3(4), claims to cultural objects which form an integral part of an identified monument or archaeological site or belong to a public collection, are not subject to the overall fifty years limitation. 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 from signing this Convention, article 3(5) allows a contracting state to make a declaration that a claim for return of cultural objects in article 3 is subject to a limitation period of seventy-five years or longer, as provided in that state's law. Thirdly, the 1995 UNIDROIT Convention makes special provision for compensation for bona fide possessors. In respect of the return of stolen cultural objects, this Convention 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. This provision is also controversial. Some nations were opposed to it, either because of a conflict with domestic laws, or because they did not possess enough resources for providing compensation. 54 To be entitled to compensation, the possessor should be able to prove he neither knew nor ought reasonably to have known that the object was stolen, i.e. that he exercised due diligence when acquiring the object in dispute. Some elements to be considered in determining due diligence are listed in article 4(4).55 (c) Return of illegally exported cultural objects: Firstly, the basic rule for return is conditional in nature. Whereas the return of stolen cultural objects is concerned with bona fide acquisition, with respect to the return of illegally exported cultural objects, the main problem 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 of an object, the requested state must affect a return of that object. The return is conditional in that it only applies to objects which have been proven to be of significant cultural importance for 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 Illegally Exported Cultural Objects (LRC ) online: < lrc_95.html>. [Report on the UNIDROIT Convention] UNIDROIT Convention, supra note 2, art. 3(3)-(8). 54 Report on the UNIDROIT Convention, supra note 52, para 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, whether the possessor consulted any reasonably accessible register of stolen objects, and any other relevant information and documentation which it could reasonably have obtained, and whether the possessor consulted accessible agencies or took any other step that a reasonable person would have taken in the circumstances. HeinOnline S.Y.B.I.L

12 12 SYBIL INTERNATIONAL PROTECTION OF CULTURAL PROPERTY four kinds of interests listed in article 5(3). Article 7 provides the circumstances under which provisions of return shall not apply. Secondly, the limitation periods laid down in article 5(5) are similar to those established in article 3(3). However, in relation to illegally exported cultural objects, no provisions comparable to those in article 3(5) exist, as the return procedure provided in chapter III of the Convention applies only to significant cultural objects which must meet the requirements of article 5(3). Thirdly, no due diligence requirement is mentioned for possessors of illegally exported cultural objects. The absence of such provision deviates significantly from the requirement with respect to stolen cultural objects. Thus, issues concerning burden of proof are not clear. Fourthly, the issue of retroactivity must be discussed. Retroactivity is also one of the most debated and sensitive topics in the drafting of this Convention. Some nations, mainly developed nations, preferred a non-retroactive approach to application, while nations suffering from heavy cultural property losses felt it unacceptable to recognize the legality of any previously illegal transaction in cultural property. Ultimately, non-retroactivity was preferred. However, article 10(3) states clearly that this Convention does not in any way legitimize 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 also recognize that trade in cultural property exported against the laws of a source nation is illegal and state parties are obligated to facilitate the return of stolen or illegally exported cultural property and prevent the import of such objects. However, there are many differences between them. Firstly, though definitions on cultural property are similar, cultural objects protected by the 1995 UNIDROIT Convention need not be "specifically designated" by state parties, as required by the 1970 UNESCO Convention. Thus, more objects are protected under the 1995 UNIDROIT Convention than the 1970 UNESCO Convention. Particularly, the 1995 UNIDROIT Convention extends protection to undiscovered and unexcavated cultural property. 56 Secondly, as previously mentioned, it is commonly recognized that the 1970 UNESCO Convention generally operates through interstate diplomatic channels and not through any set of private legal mechanisms. 57 Hence, it does not provide individuals with the right to bring suit. In contrast, the 1995 UNIDROIT Convention has operational private law provisions that enable both states and individual owners who wish to recover a stolen object to 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 UNESCO Convention merely emphasizes fair compensation but does not define the concept of "bona fide". In contrast, the 1995 UNIDROIT Convention lists several elements to be considered in deciding whether a buyer is a bona fide buyer. Fourthly, the 1995 UNIDROIT Convention provides limitation periods and an arbitration clause. 5 9 The 1970 UNESCO Convention does not contain such provisions. A period of limitation may ensure that original owners bring a timely claim, while arbitration provides an alternative dispute resolution method for settling cultural property disputes. Though the two conventions differ in many respects, their objectives are similar, that is, to call upon the international community to take an active part in protecting cultural 56 Goldrich, supra note 50 at UNESCO Convention, supra note 1, art. 7(b)(ii) UNIDROIT Convention, supra note 2, art. 8(1). 59 Ibid., art. 8(2). HeinOnline S.Y.B.I.L

13 SINGAPORE YEAR BOOK OF INTERNATIONAL LAW (2008) property. At present, these two international legal instruments work together to try to curb illegal trafficking in cultural property. 3. Main disadvantages of the 1995 UNIDROIT Convention The 1995 UNIDROIT Convention provides preferable mechanisms for recovering stolen and illegally exported cultural objects. Significantly, it covers almost all classes of stolen cultural objects, recognizes an individual's legitimate claim and prescribes due diligence requirements in detail. Nevertheless, some defects should be pointed out. Firstly, though the compensation clause is a big step forward in relation to the 1970 UNESCO 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 retains great discretionary power in deciding whether to give compensation and the amount thereof. Secondly, this Convention suggests different types of limitation periods. However, some worry it will actually encourage "fraudulent concealment" 60 by setting definite time periods for the true owner of stolen cultural property to bring a claim. Thieves of stolen cultural property can hide the stolen object until the prescribed time limitation expires. The stolen cultural property can then be safely sold. In addition, incentives for theft are enhanced as the value of cultural property increases over time. Thirdly, this Convention applies only to stolen and illegally exported cultural objects after its entry into force. It does not provide protection for millions of cultural property already illegally removed before the effective date of this Convention. Therefore, some scholars hold that the 1995 UNIDROIT Convention does not achieve its anticipated objectives, merely adding another legal method for resolving cultural property disputes to the already tangled web of rules. 61 Though this view is somewhat extreme and less objective, it shows scepticism towards the potential of this Convention to effectively settle cultural property disputes. 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 record from prehistory to the present, boasts rich sources of cultural property. The value of Chinese cultural property lies not only in its preciousness and scarcity but also in its role in shaping Chinese history and culture. Chinese history and archaeology are therefore keys to understanding the process of the development of human society and civilization. Unfortunately, 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 and imperialists pillaged China by means of war, robbery, looting, threat, fraud or other illegal acts. Since 1840, Chinese cultural relics began leaving China-just as quickly as the Western world arrived. The loss of Chinese cultural property overseas mainly occurred in the following three forms: through the invasion of Anglo-French forces in 1860 and the Eight Allied forces in 1900; through the 'cultural investigations' of archaeological sites in Northwest China by Western explorers in the late 1 9 th and early 2 0 th 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 at See Adina Kurjatko, "Are Finders Keepers? The Need for a Uniform Law Governing the Rights of Original Owners and Good Faith Purchasers of Stolen Art" (1999) 5 U.C. Davis J. Int'l L. & Pol. 59 at HeinOnline S.Y.B.I.L

14 12 SYBIL INTERNATIONAL PROTECTION OF CULTURAL PROPERTY invasion of Japanese forces during World War Two. 62 Statistics show that more than 10 million Chinese cultural objects have been lost overseas, among which about 1.67 million pieces are housed in more than 200 museums in 47 countries. 63 Most of them are currently held by museums or private collectors in the United States, United Kingdom, France, Japan and some Southeast Asian countries. 64 These lost cultural treasures cover a wide range of objects, 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 many resources to protecting its cultural property. Nevertheless, the worldwide popularity and huge demand for Chinese cultural property, both domestically and abroad, has stimulated an astonishing increase in illegal excavation and smuggling over the past 60 years. There are an estimated 400,000 archaeological sites in China, most of them scattered throughout the undeveloped countryside where protection is difficult. The looting and destruction of these archaeological sites pose a real threat to the cultural preservation of Chinese culture. Statistics indicate that over the past two decades, more than 300,000 ancient tombs have been looted, resulting in the loss of millions of Chinese cultural relics. 65 In recent years, theft of collections from cultural institutions such as museums and monuments has increased significantly. According to a report in 2004, theft of cultural property increased 80 percent from the previous year, while only 20 percent of the culprits were apprehended. 6 6 Smuggling is also serious. In terms of monetary value, cultural relics are thought to be the largest single class of items smuggled out of China.67 From 1991 to 2000, over 100,000 pieces of smuggled artifacts were seized by Chinese customs. Although many archaeological artifacts destined for abroad have been identified and intercepted by Chinese customs authorities, others are successfully smuggled abroad for sale on the international market. Even worse, the smuggling of cultural relics has become increasingly organized and internationalized, with many criminal gangs organizing their own 'logistics networks' to supply international demand. The looting and smuggling of so many artifacts from archaeological sites and monuments compromise academic study and the knowledge that can be gained from proper excavation and removal, causing great damage to the interpretation of Chinese cultural heritage. To prevent the widespread illegal trafficking of artifacts, the legal protection of cultural property is indispensible. After more than half a century of persistent efforts, China has now formed its 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 significance 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 Cultural Heritage", online: China Cultural Heritage Net < 63 "More than 10 million Chinese cultural relics lost overseas: report" People's Daily (30 January 2007), online: < 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 Guimet museum of France is famed for having the best collection of Asian art works. In the United States, thousands of large ancient Chinese bronze wares can be found, including at least a thousand extraordinary pieces. "Chinese Experts Demand Return of Cultural Relics" People's Daily (27 January 2003), online: < 65 See Lu Jiansong, "At the Back of an Overflowing Black Market in Cultural Relics" (12 August 2003), online: chinacourt.org < 66 "State Administration of Cultural Heritage: Of the Thirty-Six Theft Cases of Cultural Relics This Year, More Than Eighty Percent Have Not Been Detected" People's Daily (28 December 2004), online: < 67 "China: Stolen Bust Seized in US" China Daily (15 June 1998). HeinOnline S.Y.B.I.L

15 SINGAPORE YEAR BOOK OF INTERNATIONAL LAW (2008) measures and instructions to protect cultural relics. The legal basis for the Chinese government to regulate cultural property is found in article 22 of the Constitution of the People's Republic of China, 68 which provides that the State, in addition to promoting literature and the arts, "protects places of scenic and historical interest, valuable cultural monuments and relics 69 and other important items of China's historical and cultural heritage." Though China has a long legislative history of enactments regulating cultural property, the Law of People'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 protection. Additionally, the Criminal Law of the People's Republic of China of also contains articles on punishment of criminal activities involving cultural property. Other regulations and rules issued by relevant authorities, such as the State Council, State Administration of Cultural Heritage and Cultural Ministry, also constitute an important part of the legal efforts to protect cultural property. Moreover, special administrative units to protect cultural property have been established throughout the provinces, autonomous regions, municipalities, counties and cities. A brief survey of the Chinese legal system for protection 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 basis for their regulation in China. According to article 5, all cultural relics, whether remaining underground, in the inland waters or territorial seas, within the boundaries of China belong to the state. Ancient sites, tombs, cave temples and those immovable cultural relics that have been designated for protection by the state-such as memorial buildings, ancient architectural structures, stone carvings, mural paintings and typical buildings of modern and contemporary times-are, unless otherwise provided for by the state, owned by 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 under the caretaking of state-owned cultural collection entities, as well as other state organs, armed forces, state-owned enterprises and public institutions; (3) collected and purchased by 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 to foreigners. 72 Article 5 clearly states that the ownership of state-owned cultural relics is protected by law and shall not be infringed upon. The national ownership declarations contained in article 5 of the Law of 2007 create a valid property interest in Chinese cultural relics concerned. As long as the national ownership law is sufficiently clear and unambiguous, a valid ownership right is created and inherent in this law, regardless of whether the state has possession or even knowledge of the cultural object prior to its illegal removal. A clearly prescribed national ownership law is solid ground for declaring "stolen" those cultural relics illegally removed and 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 of Order of the President No. 83 (14 May 1997) [Criminal Law of Law of 2007, supra note 70, arts. 24 and 25. HeinOnline S.Y.B.I.L

16 12 SYBIL INTERNATIONAL PROTECTION OF CULTURAL PROPERTY 2. Export control of cultural property It has become common practice for a nation to regulate the export of its cultural property by legislative and administrative means, though the forms of export regulation differ between nations. 73 The export control of cultural relics in New China dates back to 1950, when the government promulgated preliminary measures 74 aimed at preventing the flow abroad of valuable cultural relics. These preliminary measures paved the way for the subsequent comprehensive administration of cultural relics export in China. Subsequently, two orders 75 controlling the export of important Chinese cultural relics were adopted, the first in the early 1960s, and the latter in the 1970s. As of the 1980s, a series of notices issued by the State Council and the State Administration of Cultural Heritage have further stressed China's policy on the export of cultural relics. With the adoption of the Law of People's Republic of China on Protection of Cultural Relics in 1982,76 cultural relics were, for the first time, regulated by formal law. This law has been amended three times for clarification purposes, the most recent reflected in the Law of Generally, the Law prohibits the export of cultural relics that are either state-owned or "precious", 77 with limited exceptions for exhibitions. 78 The newly amended Standard of Examination and Verification for the Export of Cultural Relics of 20077' establishes a relic dating system for the export of cultural relics. According to these Standards, all categories of 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 is Cultural relics allowed to be taken out of China are subject to examination and verification. 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 at customs. 80 Authorisation must be obtained from the State Council when Grade-one cultural relics intended for exhibition abroad exceed 120 in number or account for 20 percent of all objects exhibited abroad. 81 The maximum period for exhibition abroad is one year. 82 The sole existing or fragile relics among the Grade-one cultural relics are prohibited from being taken out of China for exhibition. 83 Moreover, cultural relics which have not been exhibited in China are not allowed to be exhibited abroad For a detailed discussion of the principal forms of export regulation on works of art, see Bator, supra note 34 at 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 Cultural Relics with Special Permission, Order of the State Bureau of Cultural Relics (approved 31 July 1979; abolished 15 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 Ministry of Culture No. 19 (10 May 2001) [Rating Standards for Cultural Relics of 2001]. 78 Law of 2007, supra note 70, art Order of the State Administration of Cultural Heritage (5 June 2007) (substituting the Order of 1960). 80 Law of 2007, supra note 70, art Implementation Measures of the Law of People's Republic of China on Protection of Cultural Relics, Order 82 of the State Council No. 377 (13 May 2003), art. 48 [Implementation Measures of 2003]. Law of 2007, supra note 70, art Ibid., art Implementation Measures of 2003, supra note 81, art. 49. HeinOnline S.Y.B.I.L

17 SINGAPORE YEAR BOOK OF INTERNATIONAL LAW (2008) 3. Regulation of the cultural property market One of the prominent features of the Law of 2007 is the legalization of private transactions and the creation of a licit cultural property market in China. Individuals and organizations from 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 from cultural relics auction enterprises; (4) exchanges or transfers between individual citizens pursuant to law; and (5) other methods authorized by the central government. Cultural relics lawfully collected and owned are protected by law and can be circulated according to law. 8 " The ownership of individuals is protected by law. 8 6 The Law of 2007 also makes it clear that trade in state-owned cultural relics, privately owned valuable relics in institutional collections, or immoveable cultural relics, is prohibited. 8 7 Cultural relics stores and auction enterprises are also regulated by the Law of Firstly, the Law prohibits cultural relics shops from running auction enterprises, and vice versa. 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 enjoy a priority right in purchasing the valuable objects up for auction during the mandatory examination, and the purchase price is negotiated and determined by the representative of the collection institutions and the grantor of the cultural relics. 89 In recent years, more regulation of the cultural property market has been put into effect through government administration of the cultural relics market. By creating a system that allows for trade in cultural relics among individuals, organizations, cultural relics shops and auction houses, the Law of 2007 has helped to meet the demand for legitimately traded Chinese cultural relics. 4. Record keeping and theft reporting system According to the Law of 2007, museums and other institutions with collections of cultural relics should classify the cultural relics into different grades, compile a file for the cultural relics and establish a strict system of control. 90 Excavated archaeological relics shall be registered, properly preserved and turned over for collection. 9 1 Cultural relics stores and auction enterprises are required to keep the records of the cultural relics they purchase, sell or auction. 92 In China, a national inventory of archaeological collections began in 1989 to enhance the protection of collections. Since April 2007, the third national survey of cultural relics has been started. To promote digital management of collections of public museums, a project for constructing a database management system began in To date, the database has recorded information on more than 1,540,000 cultural relics. 93 In addition, another database on cultural relics lost overseas was established, cataloguing data on more than 20,000 lost relics. These undertakings will help realize the modernization of the system of national museums, safeguard the safety of cultural relics, and provide valuable information for their (hypothetically needed) recovery. The Law of 2007 also requires collection institutions to report immediately to public security organs and other competent authorities when cultural relics in cultural institutions 85 Law of 2007, supra note 70, art Ibid., art Ibid., art Ibid., arts. 53 and Ibid., art Ibid., art Ibid., art Ibid., arts. 56 and "The Key National Cultural Relics Institutions Will Realise Digitalization of Archives in Five Years" (17June 2005), online: < HeinOnline S.Y.B.I.L

18 12 SYBIL INTERNATIONAL PROTECTION OF CULTURAL PROPERTY are stolen, robbed or missing. 94 The reporting system is designed to help prevent further losses of cultural relics. Meanwhile, requests for assistance should be submitted to all available resources, including foreign enforcement agencies and international organizations. In all, the record keeping and theft reporting system could potentially make state administrators of cultural relics alert of any stolen cultural relics emerging on the market and provide a way to trace where a particular piece came from Rewards and legal liabilities The Law of 2007 further strengthens the enforcement powers granted to various governmental organs. These organs share the responsibility of protecting cultural relics within their power and are granted the power to correct offences involving cultural relics. Various civil and administrative responsibilities with different degrees of punishment, including warnings, 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 also provides for the reward of those who: (1) earnestly implement laws and regulations on cultural relics and make remarkable achievements in protecting cultural relics; (2) struggle against criminal activities in the interest of protecting cultural relics; (3) donate important cultural 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 archaeological excavations and other outstanding achievements in the field of cultural relics protection. The Criminal Law of 1997 makes specific provision for protecting cultural relics against theft, smuggling and other criminal activities. Section 4 of the Criminal Law of 1997, entitled "Crimes against Control of Cultural Relics", imposes criminal liability for damaging or destroying cultural property, private selling, selling for profit, selling by a museum, or illegal excavation of ancient tombs or remains. 9 7 There are further sections that provide for 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 prohibited by the Criminal Law of 1997 range from fines and confiscation to prison sentences, and in serious cases, even death. The punishment for each criminal activity is closely linked to 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 as repeated 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 efforts in its fight against the illegal flow of cultural property. Nevertheless, pillage, theft and smuggling 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 to adhere to both principles of "protection" and "exchange" in order to improve the protection of Chinese cultural property in the new era. In the Chinese context, "protection" means the improvement of domestic regulations on cultural property, while "exchange" emphasizes the promotion of international co-operation with regard to the distribution of cultural property. 94 Law of 2007, supra note 70, art See Taylor, supra note 46 at Law of 2007, supra note 70, arts Criminal Law of 1997, supra note 71, arts Ibid., art Ibid., arts HeinOnline S.Y.B.I.L

19 SINGAPORE YEAR BOOK OF INTERNATIONAL LAW (2008) One needs to find a delicate balance between the domestic protection and the international exchange of cultural property. Moreover, a concerted effort is needed to educate the public and 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 cultural property, improving existing legislation and regulations on cultural property protection is necessary. (a) Adhering to the basic principles of protection: The Law of 2007 lays down four basic principles to be followed for protecting cultural property, which may be summarized as: focusing on protection; giving priority to rescue; utilizing reasonably; and strengthening management. 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 remain in their place of origin and should be returned to their original context once separated from it. On the other hand, rational "utilization" of cultural relics is allowed, provided its safety is given priority and guaranteed. Rational use may take many forms, such as exhibition abroad. Moreover, "management" safeguards the effective protection and reasonable exploitation of cultural relics. In all, the four principles form the basis on which protection and regulation of cultural property is built upon. In order to better protect Chinese cultural relics in the new era, more effective measures must be taken. (b) Clarifying definitional vagueness of certain terms: Some of the definitional problems of the Law of 2007 and the Criminal Law of 1997 need to be solved.' For example, in relation to the definition of "cultural relics", the Law of 2007 gives an enumerative and exhaustive list of the objects to be protected by the law, leaving the risk of definitional gaps. Since a general definition of "cultural relics" can fill gaps in protecting (some as yet discovered) cultural relics, adopting a mixed definition combining the enumerative list with a general definition may be a wise prescription. This approach has been adopted, inter alia, 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 of Though the Rating Standards for Cultural Relics of 2001 sets out specific rules for what constitutes Grade-one "precious" relics, 10 2 there are currently no standards for the grading and classification of Grade- two and Grade-three "precious" relics. Third, there is no objective standard in deciding the "seriousness" of an offense involving cultural relics in the Criminal Law of As previously stated, the punishment for criminal activities involving cultural relics depends on the grade of the relic in question and the seriousness of the offense committed. Unfortunately, there is no clear definition for what constitutes "serious", "extremely serious", or "heinous" offenses under the relevant provisions of the Criminal Law of Therefore, a clear standard is needed to correct the vagueness of these terms. In any case, some determinative criteria should be provided, such as the value and number of the cultural relics damaged, the degree of such damage and the repeated nature of illegal activity. These are all factors to be considered in determining the "seriousness" of the offense. Lastly, further co-ordination between the Law of 2007 and the Criminal Law of 1997 is badly needed. For example, according to article 2 of the Law of 2007, "places of historical interest or scenic beauty" are not defined as "cultural relics"; while according to article 324 of the Criminal Law of 1997, conduct that intentionally destroys state-protected 100 Law of 2007, supra note 70, art 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 Republic of China" (2004) 5 Asian-Pacific L. & Pol. J. 62 at See Rating Standards for Cultural Relics of 2001, supra note 77, Index. HeinOnline S.Y.B.I.L

20 12 SYBIL INTERNATIONAL PROTECTION OF CULTURAL PROPERTY "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, a general 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 responsible for cultural relics, including the State Administration of Cultural Heritage, Cultural Ministry, Ministry of Public Security, General Administration of Customs and the State Administration for Industry and Commerce, should make concerted efforts to create a longterm and quick-response mechanism for cultural property protection. Administration at various levels to protect cultural relics is required to best preserve and ensure the safety of those cultural relics within their respective administrative jurisdictions. Special funds for the preservation of cultural relics should be established and allocated to law enforcement agencies in order to better fund, equip and train them. Export control of cultural property should be strictly carried out according to law. Authorized agencies responsible for the examination and verification of cultural relics intended for export should be set up at each provincial 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 incentives should be worked out to mobilize the public to actively participate in the protection of cultural relics. Firstly, differences between government awards for the turning over of chance 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 activities involving 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 encouraged. Secondly, tax reduction incentives, such as those in the United Kingdom, 10 4 may encourage individuals to keep their private collections at home or transfer them to public collection institutions. Thirdly, tariffs for the import of cultural relics should be reduced in order to attract import of foreign cultural objects and promote the return of Chinese cultural property from abroad. Preferential tax measures should be taken into consideration in the future formulation of specific regulations on the management of cultural relics. (e) Regulating the auction market in cultural property: The auction market is the primary place where cultural relics can be traded. Without a well-regulated market, the quality of cultural relics to be auctioned will not be warranted and cultural relics without legal origin may be illegally laundered by way of auction. To ensure the healthy development of the market, firstly, supervision of auction houses should be further strengthened. The whole process of auction should be under control. Secondly, auction licensing and professional qualification systems should be strictly observed. Auction houses without licenses should not be allowed to engage in any auction activity.' 0 5 Thirdly, transactions concerning Grade-one cultural relics should be under strict control and cultural relics whose exchange is prohibited by law must not enter the auction markets. Fourthly, a neutral non-profit institution should be established to evaluate cultural relics to be auctioned. Only evaluated and registered cultural relics should be legally traded. Lastly, training and self-discipline of auction 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 < 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 United Kingdom, see Michael Polonsky and Jean-Franqois Canat, "The British and French Systems of Control of the Export of Works of Art" (1996) 45 Int'l & Comp. L. Q. 557 at "The Fifteen Years of Auction Market for Works of Art" (24 March 2008), online: Wenwu China < HeinOnline S.Y.B.I.L

21 SINGAPORE YEAR BOOK OF INTERNATIONAL LAW (2008) 2. Promoting international exchange and co-operation on cultural property (a) Adopting liberal attitudes toward the export of cultural property: The idea of the export of cultural relics is not new in China. As early as 1974, a circular issued by the State Council 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, may be exported in an organized way The 1979 trial measures for the export of cultural relics with special permission 10 7 emphasized that "specially permitted export" of cultural relics should be allowed in order to increase foreign currency exchange so as to support the development of socialist modernizations. Accordingly, those replica below Grade-three and without 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 Law of 2007 recognizes the right of private ownership of cultural relics and the need for a licit market to exist. Wider access to Chinese cultural relics will promote the understanding and appreciation of China and its culture by more people in the world. Hence, the exchange and export of China's cultural relics is necessary. A careful and prudent selection of those cultural relics intended for export is required. Such selection should be based on each relic's cultural significance. Generally, cultural relics with redundant replica and lower quality pieces can be made available for sale. Their sale abroad may raise more money for improving the preservation of cultural relics at home. By retaining the most important cultural relics at home while allowing the least important ones to be exported abroad, a proper balance is struck between protection and exchange of cultural property. (b) Increasing international exchange of cultural property: China attaches great importance to the international exchange of cultural property. Since its opening-up and reform, China has actively participated in the formulation of international conventions on cultural heritage protection and has by far ratified most of them. In addition, China has become a member of the most important international organizations specializing in cultural heritage protection, such as UNESCO and the International Council on Museums (ICOM). Large-scale cultural property exchange with foreign nations concerning archaeological excavation, technology transfer, financial assistance and professional training, have been carried out and made great achievements. For example, joint archaeological excavations with Cambodia, Mongolia and Kenya have been highly praised by the international community. Overseas exhibitions of Chinese cultural relics have increased significantly. Over the last 30 years, more than a thousand exhibitions have been held in various countries, which received over 100 million foreign viewers. Art is a good ambassador. It stimulates interest in, understanding of, and admiration for a country International exchange of cultural property has made Chinese cultural relics and traditional culture viewed and appreciated worldwide. As China grows as an international player, interest in Chinese cultural relics abroad will rise. Therefore, more forms of cultural exchange should be encouraged and conducted on a much larger scale in the future. The international exchange of Chinese cultural property will continue to enrich the intellectual and spiritual life of the people around the world and eventually contribute to the international protection of cultural property. 106 Circular Concerning the Opinion on Strengthening Cultural Relics Commercial Administration and Implementing the Policy on the Protection of Cultural Relics, Circular of the State Council (16 December 1974). 107 Order of 1979, supra note Ibid., arts See Bator, supra note 34 at 306. HeinOnline S.Y.B.I.L

22 12 SYBIL INTERNATIONAL PROTECTION OF CULTURAL PROPERTY (c) Recovering lost cultural property by way of international co-operation: As mentioned above, China has suffered heavy losses of cultural property due to various reasons. Measures must be taken for China to recover its lost cultural property. China has been seeking international co-operation in retrieving cultural relics by liaising closely with UNESCO, International Criminal Police Organization (Interpol), the World Customs Organization and other inter-governmental or non-governmental organizations. China also negotiated and signed bilateral protocols with countries, including Peru, India, Greece, Italy and the United States, on issues concerning the prevention and prohibition of theft, illegal excavation, smuggling and illegal import of Chinese cultural relics. In this respect, the bilateral agreement recently concluded in January 2009 between China and the United States 11 imposing restrictions on importation of certain categories of archaeological materials from China, is truly a great step forward. The agreement establishes means of co-operation to reduce the incentives for archaeological pillage and illicit trafficking in cultural objects that threaten China's ancient heritage. 11 ' In fact, so far as the return of Chinese cultural relics is concerned, remarkable achievements have been made with the help of the provisions of relevant international conventions and by way of bilateral co-operation. For example, China has successfully recovered many illegally exported cultural relics from overseas under the principles of related conventions and protocols. The successful recovery of the Marble Wall Relief from the Wang Chuzhi Tomb is an excellent example of bilateral co-operation between China and the United States under the 1970 UNESCO Convention.' 12 More recently in April 2008, a total of 156 Chinese cultural relics smuggled to Denmark were returned to China in accordance with the 1970 UNESCO Convention." 3 Such bilateral co-operation in repatriating looted treasures will help deter looting and trafficking and ultimately promote preservation and due respect for cultural property. In the future, China should further take advantage of the dispute resolution mechanisms provided in relevant international conventions to recover lost cultural property through legal and diplomatic means. We should, on one hand, remain committed to claiming those cultural relics illegally moved, while on the other, take an active part in talks and negotiations with those parties concerned. Meanwhile, joint efforts taken together with other source nations suffering from heavy losses are needed in order to form the positive atmosphere favourable to recovery and return. We shall see more Chinese cultural property lost overseas return 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 enhanced in order to raise the sensitivity of the Chinese people to cultural heritage protection. 14 The Chinese government has been very active in promoting cultural heritage protection through public education. For example, in July 1989, the Ministry of Culture and State Administration 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 Government of The People's Republic of China Concerning The Imposition of Import Restrictions on Categories of Archaeological Material from The Paleolithic Period Through The Tang Dynasty and Monumental Sculpture and Wall Art At Least 250 Years Old (14 January 2009), online: International Cultural Property Protection < 1 "A New Agreement to Protect the Archaeological Heritage of China", online: International Cultural Propety Protection < 112 For a brief discussion of this event, see Dutra, supra note 101 at "Recent examples of successful operations of cultural property restitutions in the world", online: UNESCO < TOPIC&URL-SECTION= 201.html>. 114 Law of 2007, supra note 70, art. 11. HeinOnline S.Y.B.I.L

23 SINGAPORE YEAR BOOK OF INTERNATIONAL LAW (2008) to cherish the cultural heritage of the motherland. In recent years, the State Administration of Cultural Heritage has conducted a nationwide public awareness campaign, during which experts from Interpol, the World Customs Organization, ICOM, Art Loss Register 11 and other organizations were invited to China for an exchange of opinions. Museums play an important role in educating the public. By the end of 2007, over 2,400 museums, both public and private, have been established in China. Each year, these museums hold more than 100,000 exhibitions and receive over 180 million visitors Since 2008, state-run museums and memorial halls have been opened to the public for free. To promote appreciation for China's rich and diverse cultural heritage, a national "Cultural Heritage Day" is celebrated annually on the second Saturday of June since Educating the youth is particularly important. The Suzhou Declaration on Enhancing Youth Education on World Heritage Protection, adopted at the 28th World Heritage Conference, calls on the international community to enhance youth education on the protection of world heritage Education on Chinese cultural relics is becoming a hot topic in China today as a balance between national development and the preservation of traditional culture must be found. To renew people's interest in their cultural history and traditions and educate people to care for this grand cultural heritage, governments at all levels must take an active part in increasing public awareness on the importance of cultural relics protection, raising appreciation for the non-economic values of cultural property, and making known the relevant provisions related to cultural relics protection and possible punishments for their violations. Professional training of those who are engaged in cultural relics protection, such as administrators, practitioners, law enforcement officers and technical personnel, should be stepped up in various ways in order to make their daily work more effective. Though education cannot solve all the problems we face today immediately, it does act as an effective means for cultural property protection in the long run. Therefore, education is the key to the future preservation of China's cultural property. 1 8 V. CONCLUSION Though hard to define, cultural property is indeed unique. The value of cultural property is derived from the cultural significance inherent in it. Broadly speaking, cultural property constitutes one of the basic elements of national culture and human civilization. This explains to a great extent why it should be entitled a higher level of respect and protection than other forms of property. The issue of protecting cultural property has emerged in recent years, attracting the eyes of the world. Faced with a worsening situation of cultural property protection, consensus has been reached on the importance of protecting cultural property, including the preservation of the past, respect for cultural traditions, provision of a cultural identity, and access to the glories of human achievement. Hence, international co-operation has become one of the key elements for the effective protection of cultural property. A series of principles, resolutions and conventions were adopted to deal with this problem. As such, the 1970 UNESCO Convention and 1995 UNIDROIT Convention-the principle international instruments on the protection of cultural property-are the product of long and intense international co-operation. Though many legal and practical difficulties have prevented the widespread adoption of 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 < 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 < 117 "World Heritage Conference Concludes" (8 July 2004), online: < internationali htm>. 118 See Dutra, supra note 101 at 94. HeinOnline S.Y.B.I.L

24 12 SYBIL INTERNATIONAL PROTECTION OF CULTURAL PROPERTY force by all nations, in particular the market nations. Equally important is the increased dialogue between source and market nations to foster mutual respect and understanding. To accommodate the conflicting interests among nations, the need of source nations to conserve national cultural treasures should be respected, while the rational desire for market nations to have wider access to the cultural property of the world should also be recognised. It has been accepted that certain types of exchanges of cultural property serve the greater interests of all concerned parties. Hence, any legal system contemplated must strike a delicate balance between the protection and international exchange of cultural property. As one of the most important source countries of cultural property, China has long undertaken to establish its own legal regimes to protect cultural property and prevent the illegal flow of Chinese cultural relics. However, China's rich historical and cultural heritage is 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's cultural patrimony and national identity. To improve this situation, more practical and effective measures must be taken to enhance the protection and regulation of cultural relics at home. Meanwhile, international exchange of and co-operation in distributing cultural property can serve to arouse respect for Chinese cultural heritage abroad. We believe that these efforts will, on one hand, greatly benefit China in its fight against the destruction and illegal flow of cultural property, while on the other, contribute to the preservation of world cultural heritage in the long run. HeinOnline S.Y.B.I.L