China, Cultural Heritage, and International Law

Hui Zhong

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351605694
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

China is a country that is rich in antiquities, but it is also a victim of looting that occurred during the period from the First Opium War to the end of the Japanese Occupation (1840–1945) when innumerable cultural objects were lost overseas. The Chinese Government insists on asserting its interest over its wrongfully removed cultural heritage and has sought for the return of lost cultural heritage by all means in accordance with relevant international conventions and Chinese laws. However, securing the return has been, and continues to be, problematic. Little research has been done regarding the question as to whether China has a legal basis for recovery, which is the first legal hurdle that China needs to get over. In addition, China does not have a legal basis for all cultural heritage taken during the period of 1840–1945. Claims for return without a legal basis are usually silenced or, at best, discussed only but very rarely facilitated.

This book provides an answer for the return of Chinese cultural heritage. It examines the law contemporaneous to the removal of Chinese cultural heritage and its application. For this lack of a legal basis, this book argues that a new customary international law is emerging, according to which the interests of the states of origin in their wrongfully removed heritage should be prioritised. This proposed customary rule supports the return of wrongfully removed heritage. Once this proposed customary rule is accepted, it will provide a stronger argument not only for China, but also for other states of origin with a similar dilemma, including South Korea, Egypt, Greece, Cambodia, Turkey, Peru, and Italy, to recover their wrongfully removed heritage.

While dealing with a large pool of return cases, this book is valuable to museums and art collectors in the event of buying and accepting art objects, and settling recovery disputes with states of origin. It will also be of interest to researchers, academics, policymakers, and students in the fields of cultural heritage law, international law, international trade, and human rights law.

1 Introduction

1. Introduction

On April 26 2013, the French Pinault family announced that they would donate two $40 million bronze statues to China.¹ The two bronzes, a rat head and a rabbit head, were among 12 animal heads, replicating the Chinese zodiac, in a central fountain clock at Beijing’s Summer Palace, also known as Yuanmingyuan and used by rulers of the Qing dynasty, spewing water to tell time. All disappeared after the Palace was destroyed by Anglo-French troops during the Second Opium War (1856–1860). The return of the two bronze statues enjoyed a warm welcome in China, with the State Administration of Cultural Heritage in China stating that Mr. Pinault’s offer was “an expression of friendship toward the Chinese people”. At the same time, however, it also reminded the Chinese people of the auction of the same two bronze sculptures four years earlier.

In 2009, when the statues were put up for auction in Paris, China attempted to stop the sale. The Chinese State Administration of Cultural Heritage (SACH) resolutely urged Christie’s to stop the sale, stating that the auction would “seriously hurt national sentiment”.² To China, the looting of the palace epitomises the humiliation it suffered at the hands of imperial Western powers during the Second Opium War. However, Christie’s refused to pull the bronze statues from the auction, as it continued to believe that “sale by public auction offers the best opportunity for items to be repatriated as a result of worldwide exposure”.³ A group of Chinese lawyers also launched a legal bid in a Paris court to stop the sale. However, the court ruled against stopping the auction, concluding that the plaintiff did not have a direct interest in the two statues and therefore no standing before the court. The auction ended in controversy. After China failed to block the sale legally, a Chinese businessman successfully bid for them, but refused to pay as a “patriotic” act. Convinced that he had fulfilled his duty as a Chinese citizen, he further stated that “these cultural relics belong to China … they were looted by the West in time of war and illegally taken abroad”.⁴ After the auction sale, the SACH announced new limits against Christie’s.⁵ Specifically, the Chinese Government tightened the ownership control over all cultural relics that Christie’s seeks to import or export.

This auction case clearly reflects the importance that societies attach to their cultural relics, which is why related discussions can easily become emotional.⁶ Cultural relics are often the symbols for times of victory, defeat, great suffering, or important occasions in the history of a society.⁷ However, a large number of such cultural relics were taken out of China during times of war and peace, and particularly during the period beginning with the First Opium War to the end of Japanese Occupation (1840–1949). China has since been expecting the return of its scattered cultural relics.⁸ During David Cameron’s 2013 visit in China, he was inundated with demands for the restitution of cultural objects taken from the country.⁹ When the British officials set up the official page on the Chinese social network “Sina Weibo”, China’s version of Twitter, one of the most popular questions concerned the return of Chinese cultural relics. However, securing the return of the relics taken during this period has been and continues to be problematic.

2. A Victim of Loss of Cultural Heritage

China has an abundance of cultural relics created through its history of more than 5,000 years. However, due to the decay of the Qing Government and the military superiority of European forces, China was forced to open its gates after the defeat in the First Opium War in 1840, and incurred invasions from foreign countries.¹⁰ During this period, China was dragged into the First Opium War (1840–1842), the Second Opium War (1857–1860), the Sino-French War (1883–1885), the First Sino-Japanese War (1894–1895), the Pillage of Beijing by Eight-Nation Alliance (1900),¹¹ the British invasion of Tibet (1903–1904), the First World War (1917–1918) and the Second World War (also known as the Japanese Occupation, 1937–1945).¹² China lost almost all of the wars it fought, and was forced to give major concessions to the great powers in the subsequent treaties. At the same time, China was plagued by destruction and a large-scale loss of its cultural heritage on a large scale.¹³ Generally speaking, Chinese cultural heritage was lost in two ways: first, plunder and looting in times of armed conflicts; and, second, taking by individual behaviours, such as expedition, theft and exportation, during both times of war and peace.

Large-scale looting during wartimes have resulted in massive losses of Chinese cultural heritage, in particular, during the sacking of the Summer Place by Anglo-French troops during the Second Opium War (1856–1860), the plunder of Beijing by the Eight-Nation Alliance in the Battle of Beijing (1900); and the Japanese looting in the Second Sino-Japanese War (1931–1935). For example, the Old Summer Palace was where the emperors of the Qing Dynasty lived and handled government affairs. Reputed as the “Garden of Gardens”, the Summer Palace is well-known for its magnificent architecture and extraordinary history, as it took the Qing people from 1709 to 1772 to complete this grand complex of buildings and gardens. Also, countless priceless Chinese artworks, antiquities, unique copies of literary works and compilations were collected from all over the country and stored in this Palace. However, when Anglo-French forces occupied Beijing, the invaders torched or levelled as many as 200 buildings, stripping a nearly thousand-acre site of sculptures, silk robes and jewellery.¹⁴

Japan is another major destination for the looted Chinese cultural heritage. During the Second Sino-Japanese War, public museums, libraries, imperial palaces and private houses were all targets of pillage for Japanese troops due to Japan’s notorious “Three Alls Campaign”, also known as “Burn all, loot all, and kill all”.¹⁵ The damage to China’s cultural heritage during the armed conflicts was massive.¹⁶ For example, Chongqing, with a long history dating back at least 3,000 years, enjoys a prestigious historical reputation and is famous for a series of Chinese religious sculptures and carvings, depicting and influenced by Buddhist, Confucian and Taoist beliefs. However, the 1939 carpet bombing of Chongqing in two days of air raids was described by a survivor as “a sea of fire”. It was reported that 741 historical sites, more than 15,000 paintings and over 3,000,000 books were damaged or destroyed in this act.¹⁷ It was also reported that only in 1944, 11,022 volumes of ancient books in the Forbidden City and 1,372 pieces of treasures in the Peking History Museum were pillaged by the Japanese.¹⁸

Apart from war looting, countless Chinese cultural heritage was stolen, excavated, and exported from China by individuals during both times of war and peace. Since the end of the 19th century, foreign explorers, sinologists and missionaries had come to China to collect Chinese cultural heritage. During the period of 1850 and 1940, 151 archaeological explorations were conducted by foreign expedition teams in Northwest China.¹⁹ The most well-known example occurred in 1907 when Auriel Stein convinced the guardian in the Mogao Grottoes to sell a collection of 260 paintings and more than 8,000 manuscripts to the British Museum.²⁰

In a recent donation case in 2014, seven marble columns from the Summer Palace were handed over to China from the KODE Art Museums of Bergen, a Norwegian museum.²¹ The columns were part of an over 4,000-piece collection of Chinese artefacts in the KODE museum that were donated by Johan Munthe between 1907 and 1935. Munthe lived in China from 1886 to 1935 and was first employed in the Chinese customs service. He fought on the Chinese side in the First Sino-Japanese War and was named a lieutenant general by Yuan Shikai, who would later become the first president of the Republic of China. As an avid collector of Chinese art, Munthe had a significant collection of Chinese sculpture, jade, porcelain, paintings and Chinese antiques. However, it was unclear how he obtained and transported them to Norway.

From 1840 to 1949, Chinese cultural heritage was lost in amazing figures, calculated in millions of pieces, including hundreds of thousands of works of superb quality, scattered over 47 countries.²² Britain has the richest collection of Chinese cultural objects, next comes France. It is estimated that the British Museum has around 23,000 cultural heritage objects, including Chinese paintings and calligraphy, ancient books, jade, porcelain and bronze dating from different historical periods.²³ In Guimet museum, over half of the works collected are of Chinese origin, more than 30,000 pieces in number.²⁴ The US is another destination for a great deal of the lost Chinese paintings and calligraphy. It is estimated that the Freer Gallery alone has a collection of over 1,200 paintings and the Metropolitan Museum of Art owns more than 500 pieces.²⁵

All of this loss and the taking of Chinese cultural heritage have made the return all the more important and meaningful. China has begun insisting on asserting its interests over cultural heritage removed during this period. In the auction case of 2009, China’s State Administration of Cultural Heritage stated that:

China does not acknowledge what it called the illegal possession of the two sculptures and would continue to seek the return of looted and/or stolen cultural objects and other illegally exported relics by all means in accordance with relevant international conventions and Chinese laws.²⁶

However, when the Chinese Government made this statement, it did not refer to a specific law that entitles China to claim for the return of the disputed art treasures. On the other hand, to obtain the return of removed heritage, repatriation cases have suggested that the first legal question China needs to deal with is to prove that China has a legal basis for the recovery.

Although international legal instruments, such as the 1954 Hague Convention,²⁷ the 1970 UNESCO Convention²⁸ and the 1995 UNIDROIT Convention,²⁹ which provide for the restitution of cultural heritage, have emerged over the last 70 years, they do not apply retroactively. Most historical events, for example the Looting of the Summer Palace, that have given rise to current restitution claims occurred before the promulgation of such measures. Thus, one of the fundamental reasons for disputes being unresolved is that there was no law contemporaneous to the removal regulating such taking as illegal. In other words, current possessors are under no legal obligation to return. The usual result for the recovery claims is that enforceable legal action is not an option, resulting in an unsatisfying outcome both legally and ethically.

3. Increasing Demand for Return, but Lacking a Legal Basis

China is not the only country that has been active in pursuing the return of its cultural heritage. In the past few decades, other states of origin have been expecting the return of their cultural heritage: Greece has been requesting the return of the Parthenon Marbles for decades; South Korea has been requesting the return of its Ugiew, the historical books about its Joseon Dynasty (1392–1910); Egypt has been seeking the return of the Rosetta Stone and Nefertiti; and Nigeria has been demanding the return of the Benin bronzes. In many situations, in order to bring their heritage home, many states of origin have taken legal action against current possessors. Turkey petitioned the European Court of Human Rights for the return of the Helicarnassus; Italy took legal action against Marion True, the former curator of the Getty Museum, which was revealed to have accepted stolen Italian cultural objects; and Cambodia requested the US Government to apply civil forfeiture for the return of Khmer statues. As commented by a Turkish archaeologist, “we know 100 percent that these objects at t...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Table of Cases
• Table of Legislation, Conventions and Treaties
• Preface and Acknowledgements
• 1 Introduction
• 2 States of Origin and Cultural Heritage
• 3 Availability of a Legal Basis for the Return of China’s Cultural Heritage
• 4 Customary International Law
• 5 Return of Cultural Heritage Looted during Armed Conflicts
• 6 Return of Cultural Heritage Stolen and Illegally Exported in Peacetime
• 7 Evolving Social and Ethical Norms: Practice of Individuals, Private Museums, and Auction Houses
• 8 Return of Historically Removed Heritage
• Index