|【Reference】 I. Review of the Case
(I) In July 2008, Christie's France announced that an exclusive auction of the Yves Saint Laurent and Pierre Berge collection would be held at the Grand Pala is in Paris on February 23-25, 2009, with the objects of auction including two bronze animal heads used as fountainheads-the head of a rat and the head of a rabbit-looted from Yuan Ming Yuan (The royal Garden of Perfect Brightness) by Anglo-French allied forces during the Second Opium War in 1860, which remained lost for many years overseas. The two items were expected to fetch a total of 200 million yuan (29 million U.S. dollars). When the new arrived in China, it aroused an immediate uproar of public opinions.
(Ⅱ) The Chinese government responded by making a protest, calling for a stop of the auction, claiming ownership to both items, and demanding that the ancient Chinese cultural relics be returned to China.
Speaking at a press conference in Beijing on February12, 2009, Chinese Foreign Ministry spokeswoman Jiang Yu said that the two bronze animal heads are part of the precious Chinese cultural relics looted by Anglo-French allied forces during the Second Opium War in 1860, which remained lost for many years overseas. There is no doubt that China possesses the ownership of these cultural relics, and all of these should be returned to China by justice, she said. The auction of these cultural relics plundered illegally in the war not only hurts Chinese people's feeling, damages Chinese people’s rights and interests of culture, but also violates the relevant international conventions, Jiang said, adding: “We hope that the parties concerned will consider this question in a cautious manner.” Speaking at a regular press conference in Beijing on February 24, 2009, Chinese Foreign Ministry spokesman Ma Chaoxu once again reaffirmed that the protection of cultural relics and promotion of return of cultural relics to the country of origin are not only a broad consensus of the international community, but are also a non-deprivable basic cultural rights and interests of the people in the country of origin to the cultural relics concerned. In the capacity of China's central government agency in charge of cultural heritage, the State Administration of Cultural Heritage has also made a similar claim to the auctioneer and the auction house. On February 17, 2009, the State Administration of Cultural Heritage sent a message to Christie’s to officially express its stand of firmly opposing the auction of the cultural relics looted from Yuan Ming Yuan, and clearly demand cancellation of the auction.
(Ⅲ) In December 2008, Chinese lawyers formed a “consortium of lawyers to seek the return of lost cultural relics from Yuan Ming Yuan”, in hoping to stop the auction through legal proceedings and seek the return of the cultural relics, which are actually national treasures of China. On February19, 2009, the Association for the Protection of Chinese Art in Europe (APACE), in the capacity of the applicant for a court injunction to stop the auction, filed an application to the Tribunal de Grande Instance in Paris for a stop or prohibition of the auction. On February 24, 2009, the Tribunal de Grande Instance gave a ruling on whether the two bronze animal heads looted from Yuan Ming Yuan could be put on auction, saying that the auction was in conformity to the relevant legal provisions. Besides, the tribunal also ruled that APACE did not have the direct right of claim to the tribunal, rejected the application of APACE for a stop or prohibition of the auction, and ordered the plaintiff to make each of the two defendants in the case 1,000 euros (1,350 U.S. dollars) in compensation. However, neither China in the capacity of the subject of claim to the stolen cultural relics nor competent departments concerned took a legal action to seek the return of the two items.
(Ⅳ) Christie's and Pierre Berge went ahead with their plan to conduct the auction, publicly alleging that the auction could go on as scheduled, because they were holding specific legal papers on their possession of the two bronze animal heads. On February 25, 2009, Christie's held an auction at the Grand Palace of Paris to jointly sell the rat head and the rabbit head as scheduled, with the start price set at 9 million euros (12.15 million U.S. dollars) each. As a result, the two controversial ancient Chinese relics were auctioned off for 14million euros (18.9 million U.S. dollars) each at hammer price. Later, the winning bidder turned out to be Chinese collector Cai Ming chao residing in southeast China's Xiamen City.
(Ⅴ) On February 26, 2009-a day after completion of the auction, the State Administration of Cultural Heritage issued the Notice on Matters Concerning Official Review and Approval of Applications of Christie's for Import-Export of Cultural Relics, requiring all offices of the State for examination and control over import-export of cultural relics to carefully examine and verify the cultural relics declared for import or export by Christie’s or the agencies or individuals authorized by it. The notice charges that the act of Christie's to auction the two controversial ancient Chinese relics “is in violation of the spirit of the relevant international conventions and the international understanding that any cultural relics should be returned to their country of origin, is in infringement of the Chinese people's cultural rights and interests, and has hurt the Chinese people's feelings”, “which will have serious effects on Christie’s development in China.” “Over recent years, Christie's has many times committed acts of auctioning cultural relics looted, stolen, illegally excavated or smuggled from China, with all the cultural relics involved being taken out of China illegally.” The notice warns that any negative consequences from the auction shall be assumable by Christie's.
(VI) On March 2, 2009, the National Treasure Funds of China (China Special Fund for the Salvation of Cultural Relics Lost Overseas) held a press conference in Beijing. Speaking at the press conference, Cai Mingchao said he would not pay for the bids, and the comical scene of failure of the auction occurred.
Ⅱ. Focus of legal issues in dispute
The auction of bronze animal heads has been full of twists and turns. What are the most meaningful and thought-provoking are the legal issues involved in it. So far, the auction has involved many subjects, but the real parties concerned in the dispute are China on the one hand and the auctioneer, the auction house and Pierre Berge on the other. Meanwhile, the focus of legal issues in the dispute is the subjective legitimacy of the auction.
The Chinese side considers that the two bronze animal heads are precious cultural relics of China that were looted from Yuan Ming Yuan by Anglo-French allied forces and that remained lost overseas for many years. No matter how many times the two bronze animal heads have been passed on from one party to another, China always has the right to seek their return to the country of origin, and both should be returned to China. Besides, Christie's auction of the cultural relics from Yuan Ming Yuan this time is in violation of the basic spirit of the relevant international conventions, is in senous infringement of the Chinese people's cultural rights and interests, and has hurt the Chinese people's feelings.
The French side, though indisputably acknowledging that the two bronze animal heads are cultural relics looted through aggression, persistently says that the two bronze animal heads held by Yves Saint Laurent and its successor Pierre Berge have been obtained from legitimate sources, namely, they were bought from antique traders in Paris. As they have legitimate papers on their holding, there is no legal barrier to the auction of these things, according to the argumentation of the French side. In an interview with news media, Pierre Berge cited the existence of Greek cultural relics in the British Museum as an example, insisting that holders of such cultural relics do not have to return them to the country of origin. Meanwhile, Christie’s also unperturbedly alleges that the auction house has always abided by the international laws and national laws that are related to the jurisdiction of auction of Christie's. The French Ministry of Culture and Communication also considers Christie’s auction of the bronze animal heads this time to be normal private trading. The Tribunal de Grande Instance in Paris is actively supportive of such a point of view.
It is obvious that the most fundamental core legal issue in this case is whether China has the right to seek the return of the bronze animal heads as cultural relics of the country that were looted from China in the Second Opium War in 1860. Specifically speaking, there are the questions of whether plunder can become legal property of holders through numerous ownership transfer, whether the auction or trade of such property can be legalized, whether purchase of such property from antique traders in Paris can become a “legitimate source” of obtainment, and whether the systems of acquisitive prescription and obtainment in good faith prescribed by the French civil code be generally applicable to this case.
Ⅲ. Two channels prescribed by international law for seeking the return of cultural relics by legal means and limitation of them
Presently, there exist two channels available for China to seek the return of the two bronze animal heads by legal means.
(I) The channel for seeking the return of the bronze animal heads as cultural relics of China lost overseas, in accordance with the relevant international conventions on cultural relics.
The relevant international conventions on cultural relics mainly comprise the Convention for the Protection of Cultural Property in the Event of Armed Conflict and its protocol adopted at the Hague meeting of 1954, the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO)in Paris in 1970, the Convention Concerning the Protection of World Cultural and Natural Heritage adopted by the General Conference of UNESCO in 1972, and the Unidroit Convention on Stolen or Illegally Exported Cultural Objects adopted by the International Institute for the Unification of Private Law at a Diplomatic Conference in 1995 (hereinafter collectively referred to as “the international conventions on the return of cultural relics”).
However, there is the question of prescription of application of these international conventions. As these international conventions are all products of modem times born after the 1950s, they cannot be retrogressively applicable to what happened in the time of invasion of China by the Anglo-French allied forces. Therefore, these international conventions are mostly not applicable to China's claim of rights to the cultural relics stolen or looted in wars of aggression or chaos caused by wars. Moreover, countries of inflow of foreign cultural relics such as France have not been signatories to many of these international conventions, e.g., the 1970 the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.
The bronze rat and rabbit heads involved in the auction this time are both cultural relics of China looted from China around the year 1860. Competent departments of the Chinese government, in quoting the aforesaid framework international conventions, obviously feel the fragility of the legal basis prescribed by them. Therefore, in stating the reasons for demanding the return of the cultural relics to China, they do not appear to be certainly in the right and self-confident. Their statements in this endeavor even became diplomatic euphemisms, e.g., “Promotion of the return of cultural relics to the country of origin is not only a basic spirit of the relevant international conventions and an unshirkable cultural responsibility of the governments of all countries, but is also an inevitable trend of development of social justice and civilization of mankind”; “We hope that the parties concerned can understand and respect the justifiable demand of the Chinese people. We will continue to attach importance to the development of this affair”; etc. In the whole process of auction of the two bronze animal heads, the French government pretended to be deaf and dumb, without taking any action or making any positive statement.
(Ⅱ) The channel for seeking the return of the bronze animal heads as plunder, in accordance with international conventions with respect to the laws and customs of war.
Since modern times, particularly since the proliferation of European societies, the international community has developed a system of international conventions with respect to the laws and customs of war, with realization of humanitarianism and avoidance of barbarianism as the core. This system of international conventions with respect to the laws and customs of war was first initiated in the requirement that war should give way to humanitarianism put forward in the Law of War and Peace by Hugo Grotius (1583-1645). With the birth of the 1856 Pans Declaration prescribing certain rules of naval warfare and the 1868 Declaration of St. Petersburg, this system of international conventions with the respect to the laws and customs of war began to take its initial shape as official documents of conventions. Then, the adoption of the three Hague declarations and 13 conventions between 1899and 1907, particularly the Laws and Customs of War on Land, and the Pact of Pans (The General Treaty for the Renunciation of War signified the formation of modern laws on warfare. And eventually, the adoption of the four Geneva conventions and two additional protocols in 1949 and the passage of the Convention on the Non-Applicability of Statutory Limitation to War Crimes and Crimes against Humanity by the United Nations General Assembly on November 26, 1968 signified full-scale development of the international human rights doctrine and the cause of international humanitarianism.
According to these conventions and customs, plunder, asana act of barbarism, has been classified into the category of war crimes. Likewise, plunder, as a type of ill-often property, is subject to claim by the country of origin. Moreover, the right of claim to pelf by the country of origin is free from statutory limitation. In particular, in wars of aggression, all forms of plunder forcibly seized or stolen by aggressors belong to ill-gotten property. Therefore, theoretically speaking, in demanding the return of the bronze animal heads, China can justifiably quote these conventions with respect to the laws and customs of war to make claims to them that are free from statutory limitation. According to the framework of laws on plunders of war, the source of the bronze animal heads, as a type of plunder, is ill-gotten property, and the holding of them istotally illegal. Then, no matter how many times the two bronze animal heads have been passed on from one party to another, the nature of them as plunder can never be changed, and they must be returned to the country of origin.
However, from the perspective of rigorists, there exist some legal doubts about whether China can demand the return of the bronze animal heads as a type of plunder. There has always been a colonist argument in the West that rules of the laws of war in early years were construed as “rules of the game for hunters” observable among Western colonists. As such rules were applicable among European societies or colonists only; it seemed that they were not applicable between colonists and the colonized. Only after the adoption of the 1907 Hague Convention, did the customs of war became international customs in a real sense. According to such logic, what we can do at most presently is to quote the existing framework of international law to demand the return of Chinese treasures looted by foreign aggressors since 1907, particularly those looted by Japan during the Second World War. But the bronze animal heads made for the 12-animal Zodiac fountain in front of the Hall of National Peace at Yuan Ming Yuan were looted from China by Anglo-French allied forces in a war of aggression in 1860. At that time, there was no Hague Convention or the Pact of Paris in a universal sense. Whether we can quote such international conventions in demanding the return of plunder to China is still a question today.
In short, we have encountered a difficult problem-there do exist uncertainty and incompleteness in the framework of the relevant international law, which proved to be barriers to China's bid to seek the return of the bronze animal heads. For the so-called looted cultural relics or those the have remained lost overseas in history, it seems that under most of the circumstances, there is the absence of a solid and effective international law mechanism for demanding their return to the country of origin. Although both the plunder and trading of the bronze animal heads are obviously unjustifiable, there do exist difficulties against China's bid to seek their return by defining them as cultural relics or as plunder.
Ⅳ. Cause for limitation of China's bid to seek the return of the bronze animal heads-historical blank spots existing in modern international law
The occurrence of the predicament in the bid to seek the return of the bronze animal heads is a result of the existence of serious historical blank spots in the so-called modern international law. For the present international law concerned, it was a new creation of a particular historical period of time, which cannot be pertinently applied to settle historical problems taking place in the years around 1860 that have become prominent as a result of the bid to demand the return of the bronze animal heads.
The framework of the modem international law concerned formed in the early part of the 20th century, and the forces behind its formation were mainly the old Western colonialist powers themselves. The various man-made catastrophes of plunder in human history and similar problems mainly took place in the 16th, 17th, 18th and 19th centuries when colonization by Western powers became the most active. This part of human history has never been reckoned with in an impartial way, and has basically remained in blank spots in modem international law.
The old Western colonialist powers have always been reluctant to face up to their history of colonialist plunder, and appear unwilling to join the nations that were subjected to the plunder of colonization or semi-colonization in history in seriously reckoning with their behavior of colonization, their wars of aggression and their behavior of plunder of property and cultural relics. It is known to all that even the Second World War was triggered mainly by the contention of Western powers for dominance over the world or for the power of dividing up the world. Although this war led to the generation of the international human rights doctrine and the cause of international humanitarianism happily to us all, the marks of the old world order manifested in modem international law are still very obvious, and the history of colonization by Western powers beyond this period of time has never been seriously reckoned with.
Therefore, there exist a number of very important historical entanglements in this world of ours. As far as the solution of such historical entanglements is concerned, there is the very difficult problem of assumption of historical responsibility by those who created the entanglements, just like what an ancient Chinese proverb says: “Let him who tied the bell on the tiger take it off”, or “Whoever started the trouble should end it”.
Obviously, in seeking the return of their cultural relics that were looted or stolen in the era of colonization or semi-colonization (by the year 1970 or earlier), it will be incapable and unwise for countries with cultural relics lost overseas, including China, to make a use of the aforesaid so-called international conventions that merely touch on the issue of demanding the return of cultural relics in certain senses.
In this sense, modem international law faces the task of remaking itself.
Ⅴ. Significances from the failure in seeking the return of the bronze animal heads by law this time
(I) A first significance is that we have become aware that to seek the return of cultural relics lost overseas will be a hard historical problem, and that the root cause for the difficulty in solving this hard historical problem lies in the existence of immense historical blank spots in international law of the present-day world.
(Ⅱ) A second significance is that we have become aware that the question of how to seek the return of cultural relics, as a hard problem left over from history, should be solved fundamentally by historical means.
Only by tracing further back to history can the relevant modem international law get out of the historical blank spots of colonization or semi-colonization. And, only with the adoption of means through which the parties concerned are responsible for history, can hard historical problems, such as the problem of return of the bronze animal heads, be fundamentally solved.
Solution of problems left over from the era of colonization, such as the problem of return of the bronze animal heads, will offer the international community, particularly the Western world with a mountain of blood debts, an opportunity to reflect on its historical past. Regrettably, the Tribunal de Grande Instance in Paris, with an approach of mechanical justice and a stance of not daring to take a look back at history, failed to seize such a historic opportunity More seriously, the so-called holder of the bronze animal heads and Christie's, with the shortsightedness of Minimalism, mistakenly lost this fine opportunity to write history. Although Pierre Berge alleges that all proceeds from the auction of the two bronze animal heads would go to charity, the party could not understand that for both France and China, a most significant form of donation in this regard will be to reckon with the history of colonization or semi-colonization. Also regrettably, there still exists a dark tidy of beautifying colonialism in France and other countries. In its governance almanac 2007, the French institute of governance renewal wrote that in France, a law attempts to clinch an argument on politically correct history: the positive aspects of colonialism must be stated.
(Ⅲ) The greatest achievement in the bid to seek the return of the bronze animal heads this time lies in its educational significance. Namely, it reminds us that we are still living amid historical entanglements and in a historical black hole, and that we must fight battles with history, under the premise of correctly understanding history and drawing lessons from history.
Ⅵ. Prospects far future solution
A most effective means for solving the difficult problem of return of the bronze animal heads should be to seek for a universal historical type of solution.
(I) The controversy over ownership of the bronze animal heads manifests that problems left over from the era of colonialism or semi-colonialism are still serious, and that as long as such problems continue to exist and remain unsettled, there will be no mutual trust and tranquility in the world.
(Ⅱ) The approach of buying back the bronze animal heads with money in the style of ransom payment can solve the problem of return of the cultural relics, but it can never settle the worries of both sides created at the time of plunder in the war. (The Westerners will be worried about possible reprisal by history while the Chinese will find it difficult to discharge their feelings of national humiliation of being bullied by Western powers in history.)
(Ⅲ) Realization of in-depth reconciliation is a premise for realizing world peace. It is also a premise for solving the problem of return of the bronze animal heads and enabling them to come back home in an easy atmosphere.
(Ⅳ) Realization of such a type of in-depth reconciliation of the world is dependently on whether all the parties concerned can face up to history, and reach full-scale agreement in the spirit of being responsible for history. Otherwise, national hatred will never be defused, and mutual trust will never be established.
(Ⅴ) The Westerners should become aware that realization of in-epth reconciliation of the world is first of all dependent on whether they can actively mend history and make up for wrongdoings
(Ⅵ) The Chinese should adopt a rational approach and a correct attitude toward the history of national humiliation of being bullied by Western powers, and avoid “infection and suppuration” in this regard-Certain excessive ultra nationalism just means a type of “infectious reaction” to this effect.
(Ⅶ) Only solution by law will be rational and stable. Therefore, the approach of reconciliation should eventually be adopted through the development of a new framework of international law capable of tracing further back to history. The present international law concerned is just a short-term achievement of history, with the settlement of its predicament and its way out lying in the process of revising it within the vision of history, extending its coverage and making it more retrogressively applicable, which is intended to make it capable of covering difficult problems left over from the era of colonialism or semi-colonialism and dedicating itself to the cause of historical reconciliation.
(Ⅷ) Presently, before the formation of a new framework of international law more retrogressively applicable to historical events, China can actively adopt diplomatic means to urge the West to accept offer for historical reconciliation.
(Ⅸ) In the short run, it is also feasible to adopt some flexible legal means, e.g., the means of domestic legal proceedings, to ease pressure on the settlement of historical problems, such as the problem of return of the bronze animal heads.
(Ⅹ) The spirit of Ah Q in this respect will be intolerable (Aha-the main character in late prominent Chinese writer Lu Xun's novel The True Story of Ah Q-is a victim of social injustice who seeks consolation in interpreting his defeats as moral victories.). Some ridiculers consider that Chinese cultural relics remaining on foreign soil will be playing a role in publicizing the Chinese civilization there. Others think that Chinese cultural relics in foreign countries are just lucky, because it is in foreign countries that they will be better maintained. They even hope that all the scenic spots and cultural relics in China can be taken over by foreigners! Still others consider that no matter where the few bronze animal heads from Yuan Ming Yuan will eventually land, their nature as part of the Chinese heritage will never change, the nature of plunder in China by the Anglo-French allied forces as carried by the bronze animal heads will never change, and the mark of national humiliation in Yuan Ming Yuan as engraved in the bronze animal heads will also never change. In reality, such considerations or statements are all unsenous and irresponsible.
(At the invitation of the international Law School of China University of Political Science and Law, the author of this article gave a lecture entitled Going Beyond Blank Spots in Modem International Law to Seek for A Historical Type of Solution at the “Serial Lectures on the 20th Anniversary of the Establishment of the International Law School of China University of Political Science and Law” on the evening of March 11, 2009. This article is the final part of the lecture.)