the return of chinese cultural treasures taken from the ... · the return of chinese cultural...

The Return of Chinese Cultural Treasures Taken From the Second

Opium War (1856-1860)

Hui Sarah Zhong

University of Queensland

Abstract. This paper focuses on the return of Chines cultural treasures taken out of the county from the

Second Opium War (1856-1860). Following the decay of the Qing government and the defeat in the First

Opium War, China was forced to open its borders and was dragged into a series of wars. During the Second

Opium War, a large number of cultural treasures were taken out of the country, which was represented by the

Looting of the Summer Palace. The Chinese government continues to seek the return of its cultural treasures

in accordance with international conventions and Chinese law. This paper begins with the historical

background to the loss of its cultural treasures. This paper will then examine how international law has

developed for the return of cultural treasures taken during armed conflicts. This paper will also discuss the

current possible solutions for recovery and their drawbacks.

Keywords: Return, Chinese Cultural Treasures, Second Opium War, International Law.

1. Introduction

On April 26th, 2013, the French Pinault Family announced that they would donate two $40 million

bronze statues that were taken from Beijing's Summer Palace by Anglo-French troops during the First Opium

War (1856-1860) to China1. These two bronze statutes, as a part of the twelve Chinese Zodiacs from the

Summer Palace, represent the splendid aesthetic achievements of bronze statuary from the Qing Dynasty.

This donation of two bronze statues enjoyed a warm welcome in China, but also reminded the Chinese

people of the auction of the same two bronze sculptures four years earlier. In 2009 when the same two

sculptures were sold at auction as part of the art collection of the French fashion designer Yves Saint Laurent

and his partner Pierre Berge. The Chinese State Administration of Cultural Heritage resolutely urged

Christie’s to stop the sale, stating that “the auction would bring repercussions as it had harmed the cultural

rights and national feeling of the Chinese people"2. A group of 81 Chinese lawyers and three foreign lawyers

organized a campaign to block the sale in the French court.

The plaintiff, the Association for the Protection of Chinese Art in Europe (APACE), filed a motion at the

Tribunal de Grande Instance in Paris to seek an injunction to stop the auction3. The plaintiff argued that the

two bronze statues were irreplaceable pieces of Chinese cultural treasures possessing significant historic and

artistic values4. The plaintiff argued further that once the two sculptures were sold at auction, they would be

held by private art dealer, which would cause irreparable damages to the Chinese people’s access to its

culture and history, and in addition to the world’s cultural treasures.

However, the French court ruled against the plaintiff concluding that “the APACE was not qualified

plaintiff to file the motion because it did not have direct links with the two bronze sculptures”5. The two

bronze sculptures were eventually purchased by a Chinese businessman, but the deal was not ultimately

concluded6. After the auction sale in 2009, China announced new limits against Christie’s. Specifically, the

Chinese government tightened the ownership control over all cultural relics that Christie’s seeks to import or

export7.

The dispute arising out of the auction sale in Paris was just one issue among the countless Chinese

cultural treasures that have been taken out of country during the Second Opium War (1856-1860).

2. The Importance of Cultural Treasures

Corresponding author, Tel.: + 61 420 668 986.

E-mail address: [email protected].

28

DOI: 10.7763/IPEDR. 2014. V71. 7

Cultural treasures are generally described as a collection of objects of historical, artistic, or scientific

value which are considered as being the material evidence of its civilization8. As a reflection of a society’s

beliefs, religions, ideologies, and values, cultural treasures represent the wisdom of a people, a group and a

nation, which can be expressed through languages, items, behaviors, production and practices9. Each cultural

item is not just a product, but also a connection surviving from a past age and linking to the future, through

which descendants can understand their ancestors and enhance their sense of recognition as a unity10

. This

sense of belonging passes from generation to generation in the future, which shapes the nature of a people as

well as embodies civilization and development11

. From this perspective, cultural treasures are of great value

and meaning to a nation.

China has an abundance of cultural artefacts, which have been created by its people through the

consistent history of more than 5000 years. However, there were a large number of cultural treasures taken

out of the country especially during the Second Opium War, represented by the Looting of the Summer

Palace.

Since the Chinese government has realized the value of its cultural treasures which can be used for

enhancing national recognition and reconstructing political identity, it has taken positive steps to reclaim its

cultural treasures12

. Both the Chinese government and the general public are expecting the return of its

scattered cultural treasures. For example, when British Prime Minister David Cameron visited China in

December 2013, he was inundated with demands for the return of cultural treasures taken from China13

.

When the British officials set up the official page on Chinese social network “Sina Weibo”, China's version

of Twitter, one of the most popular questions has concerned the return of artefacts taken from China. While

taking certain positive steps to recover the removed cultural treasures, restitution still remains a problematic

issue, as was the case in Paris in 2009 when two bronze statutes were for auction.

When seeking to recover its cultural treasures taken by Western countries many years ago, one question

China will encounter in every action is whether the removals of cultural treasures during the Second Opium

War was legal or illegal. The following section will examine how international law addressed the return of

cultural treasures.

3. International Law

Traditionally, no rule prevented the destruction and seizure of an enemy’s property, which means victors

were legitimately allowed to take property from the defeated and the destruction or seizure of an enemy’s

property was viewed as an inevitable result of war14

. No consideration was given to the protection of cultural

treasures during warfare until the sixteenth century when international jurists gradually realized that cultural

treasures should be respected and protected during warfare15

.

3.1. The Precedents for the Return

Regarding the historically removed cultural treasures, there were only limited numbers of historical

precedents for the return of art treasures to the place from which it was taken. For example, the Treaty of

Westphalia contained provisions for the return of cultural treasures taken during the Thirty Years War16

. In

1812, when a ship containing art treasures belonging to the Philadelphia Museum of Art were seized, a

Canadian court held that art treasures should be returned, reasoning that “art was part of the common

heritage of mankind and, thus, protected from seizure during war”17

. In the case of “the bombardment of

Washington”, the attack was strongly criticized by the British Parliament for its endangerment of such

cultural sites. At the Congress of Vienna of 1815, the allies insisted that the plundered art treasures taken to

the Louvre should be returned, signaling that art plunder as “spoils of war” was no longer tolerated in

European society18

. Especially after the Franco-Prussian War, the European world, both scholarly and public,

generally agreed that cultural treasures deserved privilege and respect during armed conflicts.

In the 18th and 19

th century, the concept that cultural treasures belong to all humanity emerged in

international law which developed to restrict the plunder of cultural treasures as war booty19

. These early

cases laid the groundwork for the incorporation of such principles concerning cultural treasures in practically

legal binding rules among states20

.

29

The first law of war codified to restrain the combats and to preserve cultural treasures is the Lieber

Code21

. The Lieber Code, adopted in the United States in 1863, stated that only public property was

susceptible to legal seizure and distinguished cultural treasures from normal war booty for the purposes of

confiscation or appropriation22

. In no way, could churches, museums or institutions of learning “be seized,

sold, given away, wantonly destroyed, damaged, or privately appropriated until such time as a peace treaty

determined the ultimate ownership of the property”23

.

In accordance with the Lieber Code, the Brussels Declaration of 1884, a non-binding instrument,

contained provisions relating to the protection of cultural treasures24

. The purpose was to reduce the

destruction of cultural treasures by taking preventative measures, for example, by the identification and the

use of marking signs to indicate privileged buildings25

. Additionally, the Oxford Manual of 1880, adopted

by the Institute of International Law, argued that “the property of institutions devoted to religion, charity,

education, art and science, cannot be seized” and “all destruction or wilful damage to ..(the protected

buildings) is formally forbidden”26

.

While these legal instruments addressed the protection and respect for cultural treasures during armed

conflicts, they cannot be applied to determine the illegality of the removals of Chinese cultural treasures

given their scope (the Lieber Code was a domestic instrument passed by the U.S. government), or non-

binding effect (the Brussels Declaration was ratified by states and the Oxford Manual was simply a guidance

produced by the Institute of International Law)27

.

The only legal instruments China can seek for its application to determine the illegalities of removals

during armed conflicts are the Hague Conventions 1899 and 190728

. China was one of the signature countries

that ratified the Hague Convention of 1899.

3.2. Hague Conventions 1899 and 1907: Prohibiting Looting of Cultural Treasures

The Hague convention of 1907 produced several important breaking thoughts in cultural heritage law29

.

Firstly, it formally forbade the pillage of cultural artefacts. Article 23 (g) stated that destruction or seizure of

the enemy’s property was prohibited unless it was militarily necessary30

. Article 28 forbade the pillage of a

town or place, even when taken by assault31

. Article 47 put a total ban on pillage during the military

authority over the territory of the hostile state32

. Such provisions put an end to the traditional rules on war

booty and restricted the rights of a belligerent, but possible booty still remained in the case of public state

property as it was not subsumed under the category of cultural treasures33

.

The second achievement can be concluded as artistic, religious and scientific property was to be immune

from attack unless employed for military purposes, represented in Articles 27 and 5634

. In the cases of sieges

and bombardments, Article 27 required all the signatory states to take every possible step to spare buildings

dedicated to art, science and religion and historical monuments. The term “to spare” and “as far as possible”

made it clear that the damage, either direct injury or avoidable incidental damage, caused to the privileged

buildings as an avoidable incident of the bombardment of other targets was unlawful35

. The suggested

measures were giving notice to the enemy by marking these buildings, which must be communicated to the

enemy in advance, and avoiding using these privileged buildings and historical monuments for military

purposes. However, if the privileged buildings were used for military purposes, then the special protection

was forfeited36

.

Article 56 required states to protect both movable and immovable property belonging to institutions of

religious, chartable, educational, historic and artistic character37

. Article 56 provision was cited in, Menzel v.

List , the first American case to consider the ownership of a cultural item looted during the Holocaust. In this

case, the court held that Nazi appropriations of cultural treasures during the Second World War had violated

the Hague Convention 190738

.

The Hague Convention of 1907 not only criminalized acts against religious and cultural treasures during

armed conflicts and belligerent occupation, but also explicitly sanctioned prosecution of violators and

remedies for victims39

. In addition, in response to the argument that several of the belligerents in the Second

World War were not parties to the Hague Convention and therefore not legally bound, the Nuremberg

Tribunal stated that the Hague Convention should be viewed as part of customary international law40

.

30

Accordingly, it can be concluded that the looting or pillage of cultural treasures during armed conflicts

constitutes a breach of international law which entitles the injured State to seek reparation41

.

Based on a detailed analysis of international law, the conclusion can be drawn that the seizure and

destruction of Chinese cultural treasures as war booty after the enforcement of the Hague Conventions 1899

and 1907 were illegal. In other words, China can take legal actions to invoke state responsibility in the

breach of international law and was supposed to seek the return of removed cultural treasures taken after

1899 as reparation. However, regarding the cultural treasures taken during the Second Opium War (1856-

1860), there was no law applied at that time prohibiting such conducts.

3.3. Current International Conventions do not Cover Historically Removed Cultural Treasures

In an effort to strengthen the laws protecting cultural treasures in the wake of their disastrous failure in

World War II, the 1954 Hague Convention and its two protocols obligate belligerents to take preventive

measures in both wartime and peacetime to reduce the impacts of armed conflicts on cultural treasures.

According to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed

Conflict, belligerents are obliged to avoid targeting cultural treasures and to protect it regardless of its

ownership or origin. Also, it requires states to take certain measure to protect their own cultural treasures in

advance of war.

After having emerged from occupation, colonization, and turbulent political circumstances, newly

independent countries were anxious to recover their important cultural relics as many of which were stored

in the museums of former colonizing. Also, newly independent states were concerned at the continuing loss

of cultural relics as they did not have enough resources to control it. The purpose of 1970 UNESCO

Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership

of Cultural Property is not to stop any interchange of cultural treasures between states completely, for

example, exchanges for scientific, cultural or educational purposes. Under the regulation of 1970 UNESCO

Convention, only the illicit import, export and illegal transfer of ownership of cultural treasures are the

targets42

. The 1970 UNESCO Convention actually constituted a decisive step in the area of protecting

cultural treasures, as it set minimum standards for the adoption of other instruments at a national, regional

and international level43

.

The 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects was an attempt to

eliminate the obstacles in the way of the return and to strike a delicate balance between compulsory return

and compensation for a bona fide purchaser. Additionally, it tried 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 treasures44

.

Based on the analysis above, while these three primary multilateral treaties deal with destruction,

appropriation, theft and illegal exportation of cultural treasures, they do not directly assist China in

recovering its lost relics within the existing international legal regimes. Even though China has ratified the

1954 Hague Convention, the 1970 UNESCO Convention and the 1995 UNIDROIT Convention, these three

conventions do not cover cultural treasures removed historically and most of the market states that hold

Chinese cultural artifacts have not signed the conventions.

4. Possible Solutions for the Return and Their Drawbacks

4.1. Civil Litigation

In seeking the return of cultural treasures though civil litigation, a number of problems arise45

. The first

question China need to solve is proving its ownership over the removed cultural treasures. In other words,

unless China provides evidence that there were laws existing proving its ownership over the removed items,

China does not have rights to claim the returns. China also needs to prove that the cultural treasures were

looted or stolen. As the cultural treasures were removed many years ago, there are not many records in

existence and witnesses may not survive as time passes. China is required to consider this question because

simply claiming “it is known by all” is not enough in court. Further, once the limitation period expires, it is

hard to bring the claims before the court for consideration. 31

4.2. Buying Back and Donation

China has sought for every possible solution recovering the removed cultural treasures overseas. The

major method to recover the national treasures is to buy them back. In some cases, private collectors have

donated the cultural treasures to the government. The high demand for these cultural treasures has driven

prices to an unbelievable high level. Macao entrepreneur Stanley Ho donated 6 million yuan (about 722, 892

U.S. dollars) to buy back a sculpture from a U.S. art collector and then donated it to the Poly Art Museum in

Beijing46

.

Although buying-back is the most feasible way to recover the lost treasures, limited funding is always a

problem. The State Administration of Cultural Heritage does not support the efforts of domestic institution

and individuals to bid for or purchase any Chinese treasures “that have been plundered, stolen or illegally

exported”47

.

Also, many scholars strongly reject this method to recover the plundered cultural treasures, declaring that

these cultural treasures are state property and purchasing them is a “second looting”. Song Xinchao, director

of the Museum Department in China's State Administration of Cultural Heritage explained that “to buy them

back means we acknowledge they were taken out of our country legally. It will be a compromise to the

wrong thing and even an indulgence in crimes”48

. However, the questions rising out this position are what

legal basis can be found to support this argument?

4.3. Diplomatic Negotiations

Another method is diplomatic negotiations between the current possessing countries and China.

Diplomatic channels are the most frequent approach that has been employed to recovering cultural treasures.

However, several drawbacks should be paid attention to. Firstly, it is quite difficult to recover cultural relics

if they were in the hands of individuals rather than State museums, research institutions, universities or other

governmental departments. Secondly, there also must be enough evidences to prove China’s ownership and

the cultural relics were illegally removed. Thirdly, diplomatic negotiation is closely related with political

interests. As the fastest developing economy entity, China plays an important and indispensable role in

global economic recovery, political conflicts, and producing industry.

On one hand, taking advantage of these opportunities could be another chance for recovering Chinese

cultural treasures which can be best illustrated by the two donated bronze statues from France. Specifically,

the friendly offer is largely related to China’s increasing international position and its huge profit market.

Speculations regarding this donation had something to do with the French president, Mr Hollande’s first

visit to China. As China has become an increasingly important engine of global growth in recent years, it is

necessary for France to strengthen trade relations with China. Especially during the global financial recession,

Chinese purchases of Western government debt have helped Western economies, while its consumers are

increasingly crucial to many French retails and manufacturers49

. The more domestic consumer demand is

expected to generate growing demand with potential business opportunities to match in the coming years.

While China’s domestic consumer demand is of great significance to France, the Sino-French relations

were frequently influenced by political elements. For example, Nicolas Sarkozy, the previous French

president, angered both Chinese political elites and general public after he met with the Dalai Lama, the

Tibetan spiritual leader, whom Beijing has denounced as a separatist, in 200850

. Relations became more

tendentious when Western and Tibetan protesters interrupted the Olympic torch relay when it passed through

Paris on the way to Beijing. Further, while tensions eased just before France took the presidency of the

Group of 20 in 2010, the relations deteriorated again when France criticized China’s reluctance to support

the battle against the Libyan dictator51

. France is under great pressure to remedy the diplomatic relations with

China.

On the other hand, the financial motivations that drove the Pinault Family to donate these two bronze

statues can be concluded in two aspects. First, the company has significant stakes in China, where some of its

fashion brands, like Gucci, are very popular with China's fast-growing high-end shoppers52

. Second, Pinault

Family is the controller of Christie’s which just became the first international auction house to receive a

license to operate independently on the Mainland China53

. Even though Christie’s is still prohibited from

32

engaging in auctions of cultural relics, the license granted will bring the Christie’s more profits in other

products such as wines and paintings without charging too much in taxes, or customs fees54

.

However, diplomatic negotiations cost time. During the process, political interests would be a critical

element so that countries have to balance conflicting parties to achieve a situation accepted by all parties.

5. Conclusion

While the international community has put a great deal of efforts into the protection of cultural treasures

during the last one hundred years, as most of the current international conventions and regulations do not

cover cultural treasures removed historically. There is a gap in the current legal system in providing for the

return of cultural treasures. However, the current society has shown its respect for original states’ interests

and access to their cultural treasures, which can be reflected in several aspects, for example, current

museums’ stricter policy in acquisition, the successful negotiation and cooperation in recovery and also the

evolution of cultural heritage law.

In 2002, eighteen main museums signed the Declaration on the Importance and Value of Universal

Museums, which opposes returning art works to their original places55

. After the scandal surrounding the

Getty Museum and other leading U.S. museums that found that they had had acquired scores of valuable art

items from Italy and Greece which were of dubious provenance, and added stolen property to their

collections, museums have taken stricter policy when buying and accepting cultural treasures56

. In 2008, the

Association of Art Museum Directors passed a guideline, requiring that museums should not buy or accept

artefacts which do not have a documented history stretching back past 1970 or lack an export permit from

the country of origin57

. According an art dealer’s words, “objects are guilty until proved innocent”. After six

years, this changed attitude from museums in market states reflect the fact that they are showing respect to

original states and their rights for cultural treasures, rather than just simply ignoring the claims.

Additionally, while the claims for return remained largely unsuccessful in the late twentieth century, it is

clear that there has been a change in the early twenty-first century that claims for return have been

successfully negotiated58

. More cultural treasures restored in the museums outside the origins were returned

through different channels. For example, in 2011, the Pergamon Museum agreed to return Turkey a 3000

year old sphinx from the Hittite Empire which had been taken to Germany in 191759

. In January 2009, the

FBI returned a collection of more than 100 ancient artefacts to Panama, which included a number of pottery

pieces and gold works, jewellery from the pre-Columbian period of 1100-150060

. On April 26th, 2013, the

French Pinault Family announced that they would donate two $40 million bronze statues that were taken

from Beijing's Summer Palace by Anglo-French troops during the First Opium War (1856-1860) to the

Chinese government61

.

Through the examination of cases attempting to recover cultural treasures to original states, this research

will conclude the society has gradually recognized the imperative that cultural treasures should first serve the

needs of original states. One of the best examples that can illustrate this argument is the attitude held by

museums in current possessing states, from publicly opposing the return to original states in 2002 to adopting

stricter acquisition policy in 2007, from rejecting the acquisition of cultural treasures with dubious

provenance from original states to supporting original states’ claims for recovery. All these changes have

indicated that the current society, especially the current possessing states have respected and recognized the

imperative that cultural treasures should first serve the needs of original states and should therefore be

returned.

6. Acknowledgements

I want to thank Dr. Craig Forrest for his supervision, assistance and encouragement during my Ph.D.

study. I also want to thank my dear parents, Rui Chen and Yingkun Zhong, and my lovely boyfriend,

Mohamed Kiffayathullah for their love and care.

7. References

33

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