Challenges and opportunities in recovering looted relics
----Starting from the auction in Paris of two Chinese bronze animal heads

Introduction
On February 25th, 2009, Christie’s, as the world’s largest auction house, proceeded the sale of two bronze animal heads, which were initially owned by China but lost in time of war, in Paris from the collection of the deceased fashion designer Yves St Laurent, fuelling great wrath of Chinese people. A NGO called APACE, together with a newly-established group of Chinese lawyers, applied to the “Tribunal de Grande Instance” (a court in Paris) for the “property preservation” of the two relics in order to sabotage the auction, yet the litigation was rejected since the judge held that the complainant doesn’t have the direct claim right. [1] Besides, Chinese government and individual collectors like Cai Mingchao also made their move against this auction, but China still scarcely makes any material progress in the restitution of the looted legacies throughout. [2]
Such case reveals great challenges for countries like China to get back missing or stolen artefacts due to multi-faceted legal problems, and their harvests are often not in proportion with efforts paid. On the other hand, propelled by a huge profit, illegal antique trade has been showing a rampant trend in recent years. Its annual turnover is the second highest in all illegal dealings, merely lower than drug trade. [3]
Given the lax law system on the protection of cultural relics and the burgeoning market demand, explicit need is suggested to curb the current situation. Based on the above case and focusing on its universality, this article firstly aims to shed a light on the difficulties in recovering relics. More importantly, in the later part, possible pathways to settle the issue will be discussed, with particular attention to some prospective amendments to current laws for legislative concerns.

Current difficulties for China to safeguard cultural relics –Demonstration of current laws, along with my own analysis
Given in the aforementioned case, much of the dispute is brought encompassing the ownership of the bronze sculptures, which is usually resolved transnationally, the first question we met is which laws should the judge adopt. Since empirical evidences show that most countries including France will apply the “Lex situs” (stands for the laws of the country where property is situated) to settle the conflict of laws between different states, [4] in this context therefore, considering the lawsuit was launched in France, the applicable laws can be divided into two types-specifically, the French domestic laws and international conventions. Based upon the Constitution of the French Fifth Republic, international conventions deserve precedence over its domestic laws, [5] our first focus ergo will be the international conventions on protection of cultural property.

A. Discussion on the current framework of international conventions on protection of cultural property
Nowadays, there’re mainly two multilateral international treaties committed to the subject of cultural patrimony protection, comprised by the 1970 United Nations Educational, Scientific, and Cultural Organization (UNESCO) Convention and the 1995 International Institute for the Unification of Private Law (UNIDROIT) Convention on Stolen or Illegally Exported Cultural Objects. (There’s actually a third treaty called The Hague Convention of 1954, but it’s merely applicable to the protection of cultural property in wartime to combat with vicious plunder, and does not take effect in peacetime.)
The 1970 Convention is the first one devoted to prohibit the illicit trade or transfer of ownership of cultural property, [6] which assists the signatory countries to recover their looted relics on this ground, and to some degree, the 1995 Convention is essentially an enhanced edition of the 1970 Convention. Articles in both conventions related to the issue are shown in details in the appendix.
However, in terms of the reality, both conventions are not achieving their goals. Firstly, the different stances taken by source nations and market nations diminish the reach of the Conventions. Source nations are countries with abundant cultural heritage but relatively laggard economic performances, [7] and market nations are the opposite, [8]presumably, so are their stances over such international conventions. It’s suggested that most predominant market nations, including France, do not ratify the 1995 Conventions, [9] which inflicts the major detriment to the current international convention system. Although some market nations sign the 1970 Convention, some sophisticated critics point that little enforcement power does the 1970 Convention have, given it only requires the State Parties to prevent illegal trading when the state's domestic laws agree with it." [10]Therefore, despite that China is a signatory state of both 1970 and 1995 Conventions, it has done little to recover the bronze heads given France only approves ratification on the much weaker one of them.

B. Discussion on the domestic law system in France
Apart from the international conventions, another basis to recognize the ownership of the Chinese looted cultural property is the domestic law in France.
Firstly, to protect the safety of business transactions, many countries in the civil law world including France [11]adopts a legal system called “bona fide acquisition” which allows the good faith purchasers to acquire the ownership of a property from the former holder, even though that holder does not have right to dispose the property. It poses a thorny problem for the country as counterpart to China in the above scenario. Because most current holders of looted relics (say, Yves St Laurent in the initial case) acquire and possess the treasures through licit way and in good faith, and once it’s judged that the ownership of the cultural property belongs to its current holder, other subjects will face great challenges to get the legacies back. It should be noted that an important exception exists in this system: if the possession pertains to stolen or lost property, the original possessor could request the current holder for returning the property within 3 years starting from the day it’s stolen or lost. However, any request beyond the 3 year limitation will not be considered. [12]Since many relics as the bronze heads are lost decades ago, oftentimes it’s also not practical for countries like China to take advantage of this exception. Secondly, most countries including France also stipulate the subject of the right of recourse should be involved in direct interests with the legal case. [13]Based on the Chinese property law, [14] the subject of right of the sate-owned cultural relics (say, the two bronze heads) is China itself, or all Chinese citizens, and on the behalf of them, only the Chinese government has right to file a lawsuit and exercise the right of recourse (so the final judge’s decision mentioned in the first paragraph is fair). Thirdly and also importantly, the statute of limitation (or limitation of action) is another concern for countries pursuing the restitution of the relics. In France, the limitation of action is dictated from 1 to 30 years depending on the circumstances. [15]As to the property looted upwards of hundred years ago, it becomes glaring that the statute of limitation may deprive the right of China to prosecute Christie’s, which could also be a vexing problem.

On the basis of the above two parts of discussion, separating essence from chaff, we could see there’re mainly two kinds of interest conflicts in most similar cases. The first is between market nation and source nation, and the second is between protecting good faith purchasers (or safety of business transactions) and protecting countries analogous to China. If such dispute cannot be resolved timely, it may incentivize further similar events and elicit greater moral vehemence. Some possible solutions pivoting around the proposed amendment to current laws will be explored in the following section.

Recommendation
To defuse the aforementioned conflicts and find a pragmatic interest balance point, some amendments to current laws are proposed and some other adjustments are recommended.

A. Proposed amendments to current international conventions
It should be clearly noted that technically speaking, the 1950 Convention should have offered potent protection to the cultural property of signatory countries. [16]However, as a practical matter, its marked favoritism to source nations repels the market nations that want to ensure the safety of their business transactions and the benefit of good faith purchasers. Thus, lawmakers may firstly try to weaken the constraints on market nations in the 1950 Convention. For instance, as a relaxation to Article 5, the domestic laws of market nations may be taken into consideration. Moreover, in order to protect the safety of antique trade market and good faith purchasers, as an enhancement to Article 6, not only the compensation shall be made to good faith purchasers after the relics is successfully recovered, also the amount and nature of the compensation shall be articulated in the provision. Furthermore, it’s also advisable to invite some market nations to participate in the rule-making process of further amended versions of the international conventions.

B. Proposed suggestions to settle the conflict of substantial law
As discussed above, the system of “bona fide acquisition” could be the vortex of conflicts in many cases. However, conceivably, changing that long-standing system would not be an easy task, [17] and settling for second best, we may make amendments on some requirements on “Time”. We have presented an exception in the system of “bona fide acquisition” with regard to 3 year limitation. Yet, given the location of so many valuable property keeps unknown after they’re lost or stolen, it’s suggested that the 3 year limitation goes into effect after the day that original owners pinpoint the location of looted relics instead of the day they lose them. Similarly, the limitation of action could also adopt the same logic. Such amendments may put the initial owners of lost properties and the potential good faith purchasers in an equal position.

C. Other recommendations
Considering that the subject of right of recourse is often limited to governments itself, a special institution could be officially authorized or established as the subject on the behalf of the government to exert such right. Also, governments are recommended to furnish a national fund for the protection of cultural property and related issues. Arguably, the national fund can be particularly helpful to suffice the cost incurred in the recovering process including locating looted relics, collecting relevant evidences, international negotiation, transnational litigation, compensation for good faith purchasers and so on. Also, we have to ensure that there’s always a pool of money set aside specifically for the fund and the fund is subsidizing the right person. Consequently, governments should manage to find revenue sources such as charity organizations to continually support the fund, and a standardized application procedure for the fund should also be established.

Flaws of the proposed solutions
If the current international conventions are amended, it can be difficult to maintain the fairness between different parties, because market nations and the countries in favor of good faith purchasers apparently hold greater bargaining powers. Source nations and the countries trying to weaken the system of “bona fide acquisition” may merely be able to persuade their opponents from a moral prospective or to negotiate through diplomatic channels. It’s highly uncertain whether the parties with more bargaining chips would compromise.
Also, the establishment of specific institution and setting of national fund could be postponed indefinitely since governments wouldn’t incur such cost before eliminating the uncertainties in the amendments of current laws or regulations.

Conclusion
From many aspects, the conflict between China and France can be universal, and it’s not purely a battle for ownerships within a single and integrated legal system. Rather, it involves some intricate relationships and difficulties in reconciliations between not only different countries but also states and individuals. Admitting the complexity of recovering lost relics, some explicit shortfalls in the current law system are discussed, and certain improvements on the current international conventions and substantial laws, along with some other recommendations, are argued to be capable to effectively ameliorate the situation notably from a legislative prospective. With the appropriate amendments and adjustments to current laws or policies, it’s expected that the practicability of utilizing laws to recover looted relics will be greatly improved, and the elimination of illicit trading, as a preventative matter, will become promising in the future.

References
[1]Tao, D.F. (2009, 25 February). Recovering the Yuanmingyuan relics: a glorious failure or a ridiculous farce. 163 News. Retrieved from http://news.163.com/09/0225/17/5311R9N80001124J.html
[2]Xiao, K. (2009). Legal analysis of recovering looted relics. Eastern Law. Vol. 2.p.121
[3]Stanmeyer, J (Oct. 13, 2003) Spirited Away. TIME ASIA. fig. Moving the Loot. Retrieved from http://www.time.comtime/asia/covers/50l031020/map.html
[4] Guo, Y.J and J, T. (2009) The study on the dispute over the transnational ownership of stolen artifacts. [J]. Law in He Bei. Vol.4.
[5] The Constitution of the French Fifth Republic. Art. 55.
[6] Baum, I. (2006).The Great Mall of China. Should the United States Restrict Importation of Chinese Cultural Property?.24 CARDOOzo ARTS & ENT. L.J. p.919, 930
[7] Hoffman, B.T. (2006). Exploring and Establishing Links for a Balanced Art and Cultural Heritage Policy, in art and cultural heritage: Law, Policy and Practice. p.1, 3
[8]Id. at 12.
[9] Murphy, J.D. (1995). Plunder and Preservation: Cultural Property Law and Practice in the People’s Republic of China. p. 144.
[10] Dutra, M. L. (2004). How Much is that Ming Vase in the Window?: Protecting Cultural Relics in the People's Republic of China. 5 ASIAN-PAC. L. & POL'Y J. 2. p.76
[11] Sun, X.Z. (2001). The study on Property Law. Law Press. p.53-55.
[12] Code civil des Français. Art. 2279(2).
[13] Code of civil procedure in France. Art. 31.
[14]Xiao, K. (2009). Legal analysis of recovering looted relics. Eastern Law. Vol. 2.p.126
[15] Code civil des Français. Art. 1792, 2224.
[16]Xiao, K. (2009). Legal analysis of recovering looted relics. Eastern Law. Vol. 2.p.128
[17] Taylor, J.M. (2006). Student Article. 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. p.241-242.

Appendix International conventions | Selected Items (most are partially shown and my own explanations are in red font) | The 1970 United Nations Educational, Scientific, and Cultural Organization (UNESCO) Convention | Article 2The States Parties to this Convention recognize that the illicit import, export and transfer of ownership of cultural property is one of the main causes of the impoverishment of the cultural heritage of the countries of origin of such property and that international co-operation constitutes one of the most efficient means of protecting each country's cultural property against all the dangers resulting there from. Article 3The import, export or transfer of ownership of cultural property affected contrary to the provisions adopted under this Convention by the States Parties thereto, shall be illicit. Article 5 and 6To ensure the protection of their cultural property against illicit import, export and transfer of ownership, the States Parties to this Convention undertake, as appropriate for each country, to set up within their territories one or more national services, where such services do not already exist, for the protection of the cultural heritage…
The States Parties to this Convention undertake:
(a) To introduce an appropriate certificate in which the exporting State would specify that the export of the cultural property in question is authorized. The certificate should accompany all items of cultural property exported in accordance with the regulations ;
(b) to prohibit the exportation of cultural property from their territory unless accompanied by the above-mentioned export certificate;
(c) to publicize this prohibition by appropriate means, particularly among persons likely to export or import cultural property. (These two articles entitle State Parties to make their own rules on identified cultural property to secure the protection within their territories.)Article 7
States Parties undertake, at the request of the State Party "of origin", to take appropriate steps to recover and return any such cultural property imported after the entry into force of this Convention in both States concerned…Article 9Any State Party to this Convention whose cultural patrimony is in jeopardy from pillage of archaeological or ethnological materials may call upon other States Parties who are affected. The States Parties to this Convention undertake, in these circumstances, to participate in a concerted international effort to determine and to carry out the necessary concrete measures, including the control of exports and imports and international commerce in the specific materials concerned.(This article may try to structure an international cooperation framework)Article 13The States Parties to this Convention also undertake, consistent with the laws of each State… to recognize the indefeasible right of each State Party to this Convention to classify and declare certain cultural property as inalienable which should therefore ipso facto not be exported, and to facilitate recovery of such property by the State concerned in cases where it has been exported. | The 1995 International Institute for the Unification of Private Law (UNIDROIT) Convention on Stolen or Illegally Exported Cultural Objects | Article 5The court or other competent authority of the State addressed shall order the return of an illegally exported cultural object if the requesting State establishes that the removal of the object from its territory significantly impairs one or more of the following interests: (a) the physical preservation of the object or of its context; (b) the integrity of a complex object; (c) the preservation of information of, for example, a scientific or historical character; (d) the traditional or ritual use of the object by a tribal or indigenous community, or establishes that the object is of significant cultural importance for the requesting State. (This article may underscore the obligation of State parties to return illicitly exported cultural property regardless of its domestic laws in some circumstance)Article 6The possessor of a cultural object who acquired the object after it was illegally exported shall be entitled, at the time of its return, to payment by the requesting State of fair and reasonable compensation, provided that the possessor neither knew nor ought reasonably to have known at the time of acquisition that the object had been illegally exported. (This article may aim to compensate good faith purchasers to some degree.)Article 8 (1) A claim under Chapter II and a request under Chapter III may be brought before the courts or other competent authorities of the Contracting State where the cultural object is located, in addition to the courts or other competent authorities otherwise having jurisdiction under the rules in force in Contracting States. (2) The parties may agree to submit the dispute to any court or other competent authority or to arbitration. (Compared with 1970 Convention, this article may include more subjects which could launch the procedure of the return of cultural properties)
Article 10The provisions of Chapter II shall apply only in respect of a cultural object that is stolen after this Convention enters into force in respect of the State where the claim is brought. (This article is also included in 1970 Convention, however, the States Parties are allowed to make their own declarations and reservations, which means China has right to reject this article in this case so that it may apply the Convention to the two bronze sculptures.) |