Cultural Property, Policy, and Politics: Safeguarding China’s Antiquities through Bilateral Agreements

January 26, 2024

By Roxana Wang

Chinese cultural property has a history of being vulnerable to illicit trafficking. The scattering of invaluable Chinese artifacts during the “century of humiliation (1839-1949)” is frequently evoked in China’s national narrative. While cultural property lost in the 19th and early 20th centuries is hard to reverse, China is taking action to stall the continuous illicit exportation of its artifacts. Part of the effort is to sign MOUs with the U.S. under the framework of the Convention on Cultural Property Implementation Act (CPIA). In May 2023, China requested an extension of the MOU.^[1] In light of the current affair, this article reviews China’s long way to obtaining the MOUs and evaluates the current state and regulations of the Chinese antiquities market.

What is the Convention on Cultural Property Implementation Act?

For decades, or centuries, before 1970, cultural property has departed from their source countries due to colonization, looting, and smuggling. 1970 then became a landmark year, since it witnessed the birth of the Convention on the Means of Prohibiting and Preventing Illicit Import, Export and Transfer of Ownership of Cultural Property (hence referred to as the 1970 UNESCO Convention). The UNESCO 1970 Convention establishes the framework for the international circulation and repatriation of cultural property. In 1972, the U.S. Senate consented to ratifying the Convention.^[2]

The 1970 UNESCO Convention, however, is not a strict legal document.^[3] Therefore, special legislation is needed for it to take effect in the U.S. legal system. In 1983, the much-needed legislation—the Convention on Cultural Property Implementation Act (CPIA)— was signed into law. CPIA allows the U.S. to implement Articles 7 and 9 of the 1970 UNESCO Convention. Article 7 urges a signatory state to prohibit the importation of illicitly transferred cultural property from another state while Article 9 allows a state whose cultural property is in jeopardy to request assistance from other states.^[4]

CPIA allows foreign states to enter into bilateral agreements (or Memorandum of Understanding) with the U.S., which entails an import restriction on cultural property of certain types and from certain periods. Once granted, the import restriction lasts for five years, with the possibility of indefinite extension. The statutory requirements for granting and renewal of the restriction, paraphrased in plain terms, are:

1) the requesting state’s cultural property is subject to jeopardy from the pillage

2) the state has taken measures to protect its own cultural patrimony

3) Other nations that also have an import trade in the types of artifacts in question also restrict the trade in the same undocumented artifacts

4) The imposition of import restrictions is consistent with the interest of the international community in the interchange of cultural materials.^[5]

China’s Long Way Toward Bilateral Agreements

China first entered into its first bilateral agreement with the U.S. in 2009, and the agreement has been renewed twice in 2014 and 2019.^[6] The way toward signing the first MOU, however, was already long and full of obstacles. China’s State Administration of Cultural Heritage formally presented the request to the U.S. via diplomatic ties in 1999, and in 2002, the Chinese government submitted the application.^[7] China’s request for import restriction was unfavorable among American museums and collectors, which caused the U.S. government to postpone its review of the request until 2009.

One reason collectors have difficulty with China’s request is the broad array of archaeological materials under import restriction. In the 2004 version of the request, China requested a restriction on an extremely broad range of artifacts dating from “the paleolithic Period (75,000 B.C.) through to the end of the Qing Dynasty (1911 A.D.)”^[8] This ambitious request was unpopular since it stretched the definition of “cultural property” in the CPIA—archaeological material “at least two hundred and fifty years old.”^[9] According to the revised terms of the 2009 MOU, which was also adopted hereafter, the restriction applies to “categories of objects representing China’s cultural heritage from the Paleolithic Period through the end of the Tang Dynasty (A.D. 907), and monumental sculpture and wall art at least 250 years old.”^[10] Still, U.S. collectors protested that this broad sweep of restrictions even covered 19th-century ceramics that were mass-produced for export.^[11]

The collectors should not have stressed over the U.S.-China MOU: the purpose of an MOU is to cut off illicit trade of cultural property, so they need not worry as long as they acquire antiquities with proper export certification and clear provenance. The scope of the restriction and the collectors’ grievance aside, the MOUs are subject to debates about China’s fulfillment of the four statutory requirements for entrance into a MOU. During public comment sessions prior to the renewal of the U.S.-China MOU in 2014 and 2019, commentators have raised questions about whether China has taken strong enough action to protect cultural property within its territory and whether illicit exportation to the U.S. is a chief reason for the loss of China’s cultural property. A public comment submitted in 2018 pointed to the discrepancy between the Chinese legal regime’s loose regulation of the domestic antiquities trade and its hard stance on foreign exportation.^[12] The two sections below explore China’s cultural property law and the current state of its art market.

Where are the Artifacts Going? Who Now Motivates the Looting?

The cultural property law scholar John Henry Merryman famously classifies countries in the international exchange of cultural property as “source nations,” where the internal supply exceeds the internal demand, and “market nations,” where the demand exceeds the supply. According to this frequently-cited model, demand from market nations encourages export from source nations, which can lead to illicit trafficking.^[13] China, however, complicates this model since it has both an abundance of cultural heritage and a vibrant art market.

A first question worth asking is where Chinese antiquities are going—whether they flow to “market nations” or circulate domestically. In recent years, China has steadily become one of the world’s largest art markets. According to the Global Chinese Art Auction Market Report by Artnet and China Association of Auctioneers, the global sales of Chinese art and antiquities reached $7.9 billion in 2021, out of which $5.9 billion was actually contributed by the Chinese domestic market. While the global market sales grew by 15% over the last year due to recovery from the pandemic, the Chinese art market increased by a rather striking 36%.^[14] Top Chinese auction houses like Poly International Auction are flourishing, dispatching art and antiquities to the super-wealthy in Beijing, Shanghai, and the Yangtze Delta. Given the rapid growth of the Chinese art market, we have reasons to ask if incentives for looting are now increasingly offered by wealthy buyers within China.

In 2022, the Chinese authorities announced that they recovered over 66,000 stolen cultural relics and crushed 650 antiquities trafficking gangs in the previous year.^[15] The circulation of the stolen antiquities in many of the high-profile cases was entirely within Mainland China. In January 2021, nearly two dozen Tang Dynasty Buddhist statues were stolen from Fozi Mountain, a famous Buddhist heritage site in Southwest China. The criminal gang responsible for this theft sold the Buddha heads to a dealer from Chengdu at $1500, and they then sold them to a buyer from Southeast China for $18,500.^[16] It often happens that the stolen work doubles or triples in price each time it is transferred to a new buyer.

Meanwhile, the illicit exportation of Chinese antiquities is undeniably rampant. In fact, since many criminal gangs have international connections, the illicit trafficking of cultural property in China and abroad go hand-in-hand. According to investigative reports on Chinese antiquities, the trafficking networks, looters, and dealers form complex webs that span the entire country, causing artifacts to circulate around multiple localities at an alarming speed. Looted antiquities are sometimes transferred to Hong Kong SAR or foreign destinations to be registered and cataloged at auction houses. The “whitewashed” antiquities would then re-enter the market of Mainland China or circulate in foreign markets.^[17]

China’s Legal Framework for Cultural Property Protection, Auction, and Restitution

The cornerstone of China’s cultural property law is the 1982 Law of the People’s Republic of China on the Protection of Cultural Relics (​​“1982 LPCR”). The 1982 LPCR asserted state control over cultural property by entrusting state, provincial, and municipal officials with the management of cultural property and designating looted artifacts as “stolen property,” but it had defects that compromised its efficacy.^[18] By distributing the authority over cultural property to state and local governments, the law could cause confusion in its implementation, thus failing to punish looting. The LPCR was subsequently revised in 2002, but the confusion continued. The 2002 LPCR allowed organizations and private individuals to transact cultural property, which was illegal according to the 1982 LPCR. The intention of the legislators was to disincentivize the illicit trade of cultural property by opening up a licit venue, but without curbing looting at its root, the law may be paying lip service to illicit trade passed under a “licit” veneer.

While China’s cultural property law is strict but flawed, its art market regulation also has some loopholes. According to the Auction Law of the People’s Republic of China, clients, Chinese or foreign nationals alike who auction property they do not have valid title to shall bear liabilities. The auctioneers who knowingly assisted them will also be punished. However, the Auction law somehow compromised its efficacy when it stipulated in Article 21 that “an auctioneer shall keep the identity of his client or vendee confidential if so requested.”^[19] The insufficiency of market regulation was clearly demonstrated in a case solved in 2022, in which the perpetrator auctioned in Guangzhou invaluable antique manuscripts stolen from the Sichuan Library under a pseudonym.^[20] This case highlights the necessity for Chinese auction houses to uphold transparency and for cultural institutions to maintain a unified system to update information about looted antiquities. The latter issue again ties back to the LPCR’s failure to establish a centralized framework for cultural property protection.

In recovering cultural property illicitly transferred abroad, China has been collaborating with foreign law enforcement agencies and utilizing the 1970 UNESCO Convention as an operational framework. In 2019, China requested from Japan the restitution of a set of looted bronze works dating to 770-476 BCE. Since the illicit transference of the invaluable pieces happened after 2014, Chinese and Japanese authorities were able to coordinate restitution following the guidance of the non-retroactive 1970 UNESCO Convention. These bronze pieces, belonging to Earl Kefu of the State of Zeng, are the most valuable artifacts returned to China in recent years. Chinese cultural heritage professionals have since cited their smooth restitution as proof of the importance of signing bilateral agreements with foreign countries, the U.S. included.^[21]

Conclusion: The Battle Ground of Cultural Property

There has been much debate surrounding China’s intent to renew the U.S.-China bilateral agreement in 2024. Aside from questioning China’s capacity to fulfill the four statutory requirements set out by CPIA, opponents also cited China’s increasingly assertive presence in the international arena and propagandistic cultural policy as grounds to decline the renewal request. Even if it is hard to talk about cultural property in a completely apolitical way, it is important to recognize China’s effort to save its cultural property from racketeering and preserve its educational value. For an issue as large-scale and complex as looting, international cooperation is a much-needed part of the solution.

Suggested Readings

• Hui Zhong, China, Cultural Heritage, and International Law, Routledge, 2019.
• Zuozhen Liu, The Case for Repatriating China’s Cultural Objects, Springer, 2016.

About the Author

Roxana Wang is a student at the University of California, Berkeley. Her research interests focus on the reception of ancient civilizations and the political complications involved in the preservation of our heritage. Her end goal is to contribute to the better regulation of the antiquities market and the policy-making for world heritage conservation.

Sources:

1. Proposal To Extend Cultural Property Agreement Between the United States and China, U.S. State Department (May 19, 2023), available at: https://www.federalregister.gov/documents/2023/05/19/2023-10769/proposal-to-extend-cultural-property-agreement-between-the-united-states-and-china ↑
2. UNESCO, Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Available at: https://www.unesco.org/en/legal-affairs/convention-means-prohibiting-and-preventing-illicit-import-export-and-transfer-ownership-cultural ↑
3. Alexander Herman, Fifty years on, Unesco’s convention against illicit trafficking of cultural artefacts still shines bright, the Art Newspaper (Nov 13, 2020), available at: https://www.theartnewspaper.com/2020/11/13/fifty-years-on-unescos-convention-against-illicit-trafficking-of-cultural-artefacts-still-shines-bright ↑
4. Supra 2 ↑
5. The Convention on Cultural Property Implementation Act (CPIA), 19 U.S.C. §§ 2601-2613 ↑
6. See https://eca.state.gov/cultural-heritage-center/cultural-property/current-agreements-and-import-restrictions ↑
7. Yunxia, Wang, “Enforcing Import Restrictions of China’s Cultural Objects: The Sino–US Memorandum of Understanding”, in Francesco Francioni, and James Gordley (eds), Enforcing International Cultural Heritage Law, Cultural Heritage Law and Policy (Oxford, 2013; online edn, Oxford Academic, 26 Sept. 2013), https://doi.org/10.1093/acprof:oso/9780199680245.003.0012 ↑
8. Mia J. Logan, “Limiting access to art in hopes of decreased cultural property destruction: an assessment of the United States and China’s Memorandum of understanding for 2014”, Art Antiquity & Law, 2014 19(1), available at:

   https://go.gale.com/ps/i.do?p=AONE&u=googlescholar&id=GALE|A370031979&v=2.1&it=r&sid=AONE&asid=ce1da37c ↑

9. Supra 5 ↑
10. Memorandum of Understanding Between the UNITED STATES OF AMERICA and CHINA, Signed at Washington January 14, 2009, https://www.state.gov/wp-content/uploads/2019/02/09-114-China-Cultural-Property.pdf ↑
11. Jeremy Kahn, Is the U.S. Protecting Foreign Artifacts? Don’t Ask, New York Times (April 8, 2007), available at: https://www.nytimes.com/2007/04/08/arts/design/08kahn.html ↑
12. Comment on DOS-2018-0013-0001, https://www.regulations.gov/comment/DOS-2018-0013-0006

    ↑

13. John Henry Merryman. “Two Ways of Thinking About Cultural Property.” The American Journal of International Law 80, no. 4 (1986): 831–53. https://doi.org/10.2307/2202065. ↑
14. Artnet, Global Chinese Art Auction Market Report 2021, available at:

    https://cn.artnet.com/caa/assets/pdfs/global_chinese_art_auction_market_report_2021_en.pdf ↑

15. Kevin McSpadden, Over 66,000 stolen Chinese artefacts recovered last year amid trafficking crackdown says government, South China Morning Post (April 22, 2022), available at:

    https://www.scmp.com/news/people-culture/article/3175035/over-66000-stolen-chinese-artefacts-recovered-last-year-amid?campaign=3175035&module=perpetual_scroll_0&pgtype=article ↑

16. Alice Yen, Nearly two dozen ancient Buddha statues went missing from Sichuan mountain known for artefacts, South China Morning Post (Aug 20, 2021), available at:

    https://www.scmp.com/news/people-culture/trending-china/article/3145654/nearly-two-dozen-ancient-buddha-statues-went?module=inline&pgtype=article ↑

17. Liangquan, Sun, The Underworld of Antiquities Traffickers, Outlook. ↑
18. See https://whc.unesco.org/en/statesparties/cn/Laws ↑
19. Auction Law of the People’s Republic of China, http://www.asianlii.org/cn/legis/cen/laws/alotproc366/ ↑
20. Shana Wu, China cracks down on sale of stolen antiquities and archives, the Art Newspaper (April 8, 2022), available at: https://www.theartnewspaper.com/2022/04/08/china-cracks-down-on-sale-of-stolen-antiquities ↑
21. Wu Yan, Return of cultural heritage celebrated, but China has to do more, CGTN (March 2, 2020), available at: https://news.cgtn.com/news/2020-03-01/Return-of-cultural-heritage-celebrated-but-China-has-to-do-more-OtZAmcLboY/index.html ↑