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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.

Introduction

In 2014, the United States will decide whether or not to continue to restrict the import of artefacts and other cultural property from China, the nation with possibly the largest art market in the world. (1) Pursuant to a bilateral agreement, the US has restricted the import of Chinese cultural property to help deter looting within China since 2009. (2) As the United States has only once declined to renew such a bilateral agreement, (3) it seems likely that the 2009 Memorandum of Understanding (US-China MOU) (4) between the US and China will be renewed.

This article reviews the US-China MOU in light of its anticipated renewal in 2014. Part I provides an overview of the international and American legal framework for cultural property protection. Part II further explains China's request to enter into a bilateral agreement with the US pursuant to the US's domestic implementation of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property ('1970 UNESCO Convention') (5) through the Convention on Cultural Property Implementation Act ('CCPIA'). (6) Part III provides an overview of China's current legal and regulatory regime for cultural property protection and assesses whether China has met the obligations imposed upon it in the US-China MOU. Finally, Part IV explores the public policy considerations of the US renewing or declining to renew the US-China MOU upon its expiration in 2014. In exploring the consequences of potentially renewing or declining to renew the US-China MOU on both the United States and China, this article aims to both factually and legally update the original debate surrounding the original entry into the US-China MOU in 2009 as well as illustrate the deficiencies in the bilateral agreement and the consequences of renewal on the United States' domestic cultural property law and policy.

I. International and Domestic Legal Framework for Cultural Property Protection

The 1970 UNESCO Convention is the controlling international legal instrument enacted to combat theft from museums and looting from archaeological sites. (7) With 123 States Parties to the 1970 UNESCO Convention, (8) the treaty imposes measures to prevent theft and destruction of cultural property, includes restitution provisions, and encourages the participation in an international co-operation framework. (9) The United States became a State Party to the 1970 UNESCO Convention in 1983. (10) China later became a State Party to the 1970 UNESCO Convention in 1989. (11) A State Party that believes its "cultural patrimony is in jeopardy from pillage of archaeological or ethnological materials" may request another State Party to "carry out the necessary concrete measures, including the control of exports and imports and international commerce in the specific materials concerned." (12)

The 1970 UNESCO Convention was not self-executing for the United States.13 It was not until the CCPIA was passed in 1983 that the United States could enforce its obligations under the 1970 UNESCO Convention. (14) All requests to restrict the import of cultural property of another State Party follow the process outlined in the CCPIA, including satisfaction of four statutory criteria outlined in the CCPIA. (15) Specifically, the US President may impose import restrictions upon satisfaction that: (1) "the cultural patrimony of the [requesting] State Party is in jeopardy from the pillage of archaeological or ethnological material of the State Party"; (2) "the State Party has taken measures consistent with the [1970 UNESCO] Convention to protect its cultural patrimony"; (3) "the application of the import restrictions set forth in [19 U.S.C. [section] 2606] with respect to archaeological or ethnological material of the State Party, if applied in concert with similar restrictions implemented, or to be implemented within a reasonable period of time, by those nations (whether or not States Parties) individually having a significant import trade in such material, would be of substantial benefit in deterring a serious situation of pillage, and remedies less drastic than the application of the restrictions set forth in such section are not available"; and (4) "the application of the import restrictions set forth in [19 U.S.C. [section] 2606] in the particular circumstances is consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes." (16) Such import restrictions take the form of a bilateral agreement between the United States and the requesting country, and last for a single, not to exceed five-year term (17) that may be extended for subsequent five-year 'MOU' periods if the four statutory criteria (18) are still met, and there is no cause for suspension. (19)

The CCPIA establishes a Cultural Property Advisory Committee ('CPAC') within the State Department, composed of eleven members appointed by the President, representing interests within sectors associated with the international exchange of cultural property ranging from archaeologists to museum directors, to review all requests by States Parties for memoranda of understanding. (20) Although CPAC makes a written recommendation as to whetherthe requesting party has satisfied the CCPIA's statutory criteria for the US to enter into or renew a MOU, the President or a delegated decision-maker makes the final determination. (21) Specifically, CPAC's report recommending or declining to recommend entry into or renewal of a MOU includes "terms and conditions which it considers necessary and appropriate within such agreement" and "such archaeological or ethnological material of the [requesting] State Party, specified by type ... which should be covered by such agreement." (22) In recent years, CPAC has been criticised for both its increasing opacity in reviewing applications for MOUs and its selective reading of the statutory criteria of the CCPIA in making its recommendations. (23) Indeed, CPAC has refused requests from Congress to share its internal reports regarding China's import restriction request despite its statutory obligation to do so. (24)

When the United States ratified the 1970 UNESCO Convention, it did so with the reservation that it would maintain the right to determine whether or not to impose export controls over cultural property. (25) Accordingly, the CCPIA reflects the fact that US import restrictions should be only part of a larger, international effort to prevent cultural property destruction through such restrictions, and that the "US will reach an independent judgment regarding the need and scope of import controls." (26) The narrowed interpretation of the 1970 UNESCO Convention through the CCPIA was desirable to the US for a number of reasons. Writing two years prior to the passage of the CCPIA, Paul Bator outlined much of what would be set forth in the CCPIA. (27) Bator argued that the US was correct to oppose a draft of the 1970 UNESCO Convention that required all States Parties to prohibit the import of cultural property unless accompanied by an export certification from the country of origin. (28) Such a 'blank cheque' rule would lead to an untenable border control regime and overly defer to a single country's interest rather than appropriately account for the interests of the US or the international community as a whole. Instead, import restrictions should be imposed only where it has been demonstrated that the illegal export of cultural property has led to or increased looting such that a significant threat to its preservation exists, or where its exportation may lead to an emergency resulting in serious damage to a county's national cultural heritage. (29) In all cases, import restrictions should be imposed only where not overbroad or untenable, and where they give fair notice to purchasers of what is restricted, and encourage licit and regulated international trade in art. (30)

Bator qualified his argument in favour of the US imposing unilateral import restrictions with the requirement that such restrictions were needed, feasible and reciprocal. In delegating such a decision to the Executive Branch, (31) Bator cautioned against quick resort to import barriers and overly broad restrictions that could resemble the very blank cheque restrictions the US rejected at the drafting stage of the 1970 UNESCO Convention. (32) Bator's concerns included the need for clarity that restrictions be (1) adopted for special crisis situations and not in response to high export volume; (2) as narrow as possible; (3) include reciprocal concessions regarding free trade in art; and (4) that the decision-making process regarding import restrictions must "provide an opportunity for criticism and review of proposed restrictions." (33) Bator's concerns regarding the delegation of the decision to impose import restrictions to the Executive Branch have begun to materialise. (34)

II. CHINA'S INITIAL REQUEST AND SCOPE OF 2009 US-CHINA MOU

China first requested US import restrictions in 2004. (35) Extremely broad, the request included all archaeological material from the Paleolithic Period (75,000 B.C.) through to the end of the Qing Dynasty (1911 A.D.). (36) The US-China MOU in its current form restricts the import of Chinese archaeological materials only from the Paleolithic Period through to the end of the Tang Dynasty (907 A.D.) and any monumental sculpture and wall art that is at least 250 years old. (37) A designated list outlining the categories of objects whose import into the US is restricted is codified in the Federal Register. (38) Designated objects such as vessels, sculptures, and coins can accordingly not be brought into the US unless accompanied either by an export certification from the Chinese Government or documentation that indicates that they were exported from China prior to the effective date of the US-China MOU. (39) The scope of the current US-China MOU adheres to the CCPIA's requirement that objects of archaeological interest be of cultural significance and at least 250 years old. (40) In exchange for the US's stringent import restrictions, the actions that the US-China MOU requires China to take represent a compromise between proponents and opponents of the US-China MOU, such as long-term loans to cultural institutions and increased funding and resources for cultural heritage protection. (41)

III. ASSESSMENT OF WHETHER CHINA HAS MET THE OBLIGATIONS IMPOSED UPON IT IN THE 2009 US-CHINA MOU

A. CHINA'S EXISTING LEGAL AND REGULATORY FRAMEWORK FOR CULTURAL PROPERTY PROTECTION

On an international level, China is a State Party to several international conventions on cultural property protection. Besides the 1970 UNESCO Convention, China became a State Party to the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage '1972 World Heritage Convention'42 in 1985. (43) It joined the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict through accession in 2000. (44) Like the United States, it is not a State Party to the 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage (45)

The basis of China's modern domestic cultural property protection framework began in 1982 with the passage of the Law of the People's Republic of China on the Protection of Cultural Relics '1982 LPCR'. (46) Prior to the 1982 LPCR, China's system to protect cultural property was largely through export restrictions. Examples include a regulation from 1950 prohibiting the export of historical, cultural, and artistic relics, as well as an order issued by the Ministry of Culture in 1960 controlling the export of cultural relics to prevent significant pieces from going abroad. (47) These export restrictions were enforced by the State Council of the People's Republic of China, (48) China's highest administrative body which enacts and carries out laws in accordance with and subject to the National People's Congress. (49) The State Council is also responsible for guiding lower and province-level governments in their own formulation of rules and regulations. (50) After amendments to the 1982 LPCR in 1991, 2002, and 2007, the Law of the People's Republic of China on Protection of Cultural Relics of 20 0751 functions as China's main domestic legal framework for cultural property protection.

Under the 2007 LPCR, Chinese movable and immovable cultural property is defined, and provisions address topics such as archaeological excavations and construction projects. Broadly, it defines cultural property to include, and therefore protects sites of ancient culture such as tombs, temples, and carvings and murals therein; important historic sites; valuable works of art and handicrafts; historic important documents such as manuscripts; and material which reflects the social system of various historical periods. (52) Moreover, regulations (e.g., methods of acquisition and inventory) are imposed upon public and private collections of cultural property as well as export restrictions for certain grades of cultural property and a one-year time limit for foreign exhibitions of certain Chinese cultural property. (53) Supplemental laws regarding criminal liability for damage to cultural property, and the guidelines for foreign archaeologists working in China, for example, provide additional guidelines as needed. (54)

Although the State Council controls cultural property protection in China on the highest level, much of the specifics are delegated by national to province-level authorities in broad language.55 The 2007 LPCR requires that cultural property departments "at or above the county level" shall determine such protection within their own administrative areas. (56) The oversight of activities potentially damaging to cultural property such as urban construction and tourism are also assigned to county-level officials; county-level governments are required to incorporate funds for cultural property protection within their budget, and all development "shall be governed by the principle for the work concerning the protection of cultural relics, and such activities may not cause damage to cultural relics." (57) Specific areas of cultural property protection are likewise delegated: cultural heritage authorities have been established within all provinces and autonomous regions in China to administer all archaeological activities therein. (58)

B. REVIEW OF CHINA'S OBLIGATIONS UNDER THE 2009 US-CHINA MOU

Although the US-China MOU imposes obligations upon both the United States and China, only those with richer factual findings will be elaborated upon because information was not available regarding every factor. (59)

1. Shall expand efforts to educate its citizens about the long-term importance of safeguarding its rich cultural heritage and that of other countries. (60)

Since the implementation of the US-China MOU, China has expanded its legal structure and increased efforts to protect Chinese cultural property. In its 2010-11 report to UNESCO on the application of the 1970 UNESCO Convention, (61) China reported that its cultural heritage authorities have "endeavored to raise awareness of the general public through television, radio, Internet, and events such as interview programs and knowledge contests." (62) They further claim to have promoted awareness and education within the cultural heritage and museum sector by disseminating UNESCO's One Hundred Missing Objects series as well as the International Council of Museums 'ICOM' Red Lists. (63) Under China's existing legal regime, the Chinese Government aims to educate its citizens by giving them "moral encouragement or material rewards" for, among other things, implementing laws and regulations on cultural property protection, donating their own cultural relics to the State, or immediately reporting cultural property in need of protection. (64)

Lack of knowledge among looters and some governmental officials of the value of cultural heritage, nonetheless, remains a problem despite education efforts, and poses an ongoing obstacle to combating looting and illicit art trade. (65) For example, looting remains a problem where either tolerated or unofficially authorised by local authorities who are either ignorant of or ignore the law; both rigorous enforcement by the Chinese Government and support through training and intelligence is therefore needed. (66) As acknowledged by the US-China MOU, education of Chinese citizens plays a key role in cultural heritage protection to both prevent looting and help combat against potential corruption of local levels of government to whom cultural heritage protection has been delegated. (67)

The broad language in the US-China MOU requiring China to expand "great efforts to the publicity and education in the need to protect cultural relics" (68) does not indicate the particular efforts needed to educate its citizens effectively. For example, moral encouragement may not be sufficient to encourage private collectors to donate antiquities to public museums. It has been suggested that most Chinese antiquities enter private collections, where they may be displayed as signs of wealth and power, and that the motive of many wealthy domestic collectors may be orientated toward "the investment potential of ancient works--and the glamour". (69) The imposition of legal liability for breaking Chinese cultural property laws, ranging from fines up to 500,000 RMB (approximately US$8,000) to criminal penalties for immovable cultural property, and from fines up to 100,000 RMB (approximately US$16,000) to criminal penalties for movable cultural property, may also improve citizens' awareness of the importance of cultural heritage and encourage its protection. (70)

2. Shall use its best efforts to make use of surface surveys in order to inventory sites, and to broaden archaeological research and enhance public awareness of its importance. (71)

Surface surveys have been used to inventory sites in China. For example, in 2009, the Chengdu Plain Archaeological Survey (CPAS) employed surface surveys to investigate settlement patterns in Sichuan, China, during the Neolithic Period, Bronze Age, and Han Period. (72) Still, although extensive, the existing Chinese legal framework for archaeological sites and research does not sufficiently address ways to prevent the widespread looting of archaeological sites or protect against their willful destruction. Indeed, many cultural property laws have not been updated since the US-China MOU went into effect, and none appear to address surface surveys. (73) Some of China's legal structure, both pre- and post-dating the USChina MOU, may indirectly promote public awareness of cultural property. For example, China recently reported to UNESCO that it:

   supports efforts to sort out excavation information and
   publish excavation reports, with an aim to enable the general
   public to learn more about
   archaeology. (74)


Also, because China has enacted a vesting statute, (75) all cultural property found within mainland China as the result of archaeological research belongs to the State. (76) China has also established cultural heritage authorities in each province and municipality to administer all archaeological activities within the area. (77)

In the same report, China recognised that "large-scale imperial mausoleums and tombs are not currently protected from excavation." (78) Looting and illegal excavations of cultural heritage sites in China have been undeterred, and looters, who have becomes increasingly professionalized and violent, continue to make increasing levels of profit. (79) Factors contributing to cultural heritage destruction include the vast and widely distributed cultural property in China, high profit and low risk of illegal trafficking of cultural property, and undeveloped security infrastructure for sites and monuments. (80) These problems persist despite the requirement that all excavations be subject to approval by the State Administration of Cultural Heritage 'SACH', and those conducting the excavations must hold recognised credentials. (81)

Further threatening the broadening and education of the importance of archaeological research is the destruction of sites through construction work. For example, the Institute of Archaeology, Chinese Academy of Social Sciences 'IA CASS' reported that a 2011 national survey indicated that more than 40,000 unmovable relics have disappeared over the past 30 years, half of which were destroyed by construction work. (82)

3. Shall use its best efforts to increase funding and professional resources for the protection of cultural heritage throughout the country. (83)

Increased funding and professional resources for the protection of cultural heritage may be assessed by data as to looting of archaeological sites, theft from museums, and urban conservation when it would affect archaeological materials. The difficulty of enforcing national cultural heritage laws at a local government level (to whom much has been delegated) may be exacerbated in China because of the profits earned from ignoring cultural property laws, the scale of sites and property threatened, and overall rapid urban development throughout China. (84) Since entering into the US-China MOU, China has taken steps to strengthen the security on site in order to combat looting of archaeological sites. (85) For example, in 2009, SACH created a Department of Supervision to supervise cultural property security, and from 2009 to 2010, SACH and the Ministry of Public Security launched a "Special Action Combating Cultural Property-related crimes," which has purportedly caused crime to decrease and the local administration to be restored. (86) The Chinese Government also reports that increased funding has been allocated, anti-theft technology implemented, and a national joint meeting established in 2010 to improve cultural property security. (87) In early 2012, the Chinese Government created a national information centre to combat tomb raiding, and in 2011, spending on cultural heritage protection increased to 9.7 billion RMB (approximately US$1,560,962,800) from 765 million RMB (approximately US$123,106,860) in 2006. (88)

These more recent efforts build upon those that are part of the 2007 LCRP, (89) which address funding only by delegating the budget for cultural heritage protection to the economic and social budgets of governments at or above the county level. (90) Uneven protection and funding for cultural property has resulted from the economic disparity among lower governments, and the loose language mandating that State budgetary appropriation for cultural heritage protection shall "increase along with the increase of revenues." (91)

In particular, tomb raiding has increased with the opening and expansion of China's economy and interest from both international and domestic collectors. Indeed, Professor Lei Xingshan of Peking University estimating that 95 per cent of tombs are now empty. (92) As of 2012, it is estimating that over 100,000 people are involved in illicit trade of cultural property at a national level in China despite increased security precautions. (93) Effective protection, however, comes at great expense, and it is not clear from the language of the US-China MOU what level is expected or realistic. According to Luo Xizhe of the Shaanxi cultural relics bureau, surveillance equipment and imaging devices for each tomb start at approximately 5 million RMB (approximately US$804,350), and the Chinese Government had planned to spend over 100 million RMB (approximately US$16,094,000) for such equipment over the next five years in Shaanxi alone. (94) The recently increased efforts to combat looting seem to have proven effective: the Ministry of Public Security reported that authorities investigated 451 tomb-raiding cases and 387 relic theft cases in 2010. (95) As a result, 2,366 artefacts were recovered and convicted looters were imprisoned. (96) Still, the speed at which looted material is exported to be sold on international markets, the high profits gained from the sales, and the expense of effective anti-theft technology demand more and immediate action as well as funding to successfully combat tomb raiding and protect cultural property. (97) Theft and poor preservation of artefacts both pose problems in museums and require additional funding and professional resources. In 2011, the theft of seven pieces of art from the Palace Museum in the Forbidden City marked the first such theft in twenty years. (98) In its wake, the State Council announced that it would initiate the first census of all state-owned movable cultural property. (99) It is to take place between 2012 and 2016, and aims to assess the quantity, types, distribution and preservation status of all movable cultural property within mainland China. (100) More information and better inventory may help allocate security and conservation efforts.

The treatment and destruction of cultural property during construction projects also continues and requires improved professional resources. In 2011, a five-year census indicated that approximately 17.77 per cent of China's immovable cultural relics were in 'relatively poor condition' (101) and that 8.43 per cent were preserved in 'poor condition'. Another report by S ACH found that approximately "44,000 of China's 766,722 heritage sites registered in China [in accordance with a country-wide census on cultural sites] have completely disappeared, while approximately a quarter of those remaining are either 'poorly preserved' or 'in a state of disrepair.'" (102) Specifically, these sites registered have disappeared over the past twenty years. (103) Still, China has made strides in ensuring conservation in light of its economic and urban growth. In addition to specific procedures to be followed regarding immovable cultural property and construction projects, (104) China's longstanding partnership with the World Bank to improve the capacity of Chinese conservation professionals and facilities indicates a move toward increased funding and improved professional resources. (105) However, the exclusion of entire sites from classification as UNESCO World Heritage Sites, such as the city of Kashgar in Xinjiang, has been criticised as leaving sites deemed less valuable open to destruction while others are preserved. (106)

4. Shall take measures to improve the effectiveness of its customs officers in order to (I) stop the illicit exportation of cultural property at borders and ports; and (2) recognise Chinese archaeological material and its value to the heritage. (107)

Prior to the US-China MOU, basic guidelines for moving cultural property in and out of China were already established through both the 2007 LPCR and the Review Standards on the Exit of Cultural Objects and the Administrative Rules on the Review of the Entry and Exit of Cultural Objects. They include prohibitions on exporting state-owned cultural relics except for approved exhibitions, which are subject to examination and verification by SACH and the administrator in charge of entry and exit of cultural property. (108) However, SACH's approval process for exhibitions is not outlined in the 2007 LPCR. Since 2007, SACH has created sixteen agencies to review exit and entry applications as well as issue exit permits for approved applications. (109) If it is determined that a cultural object has been acquired illegally, the reviewing agency reports its finding to the public security and customs bureaus. (110) In turn, these bureaus will report any findings of theft, looting or smuggling to the cultural heritage authorities. (111)

Despite this legal framework, China reported in 2010-11 that no accurate data was available regarding the scale of illicit import and export of cultural property. (112) Indeed, China acknowledged that illicit export of cultural property was a 'recurring problem', that penalties against illicit import and export were relatively minor, and that only a small number of items are randomly checked in increasing volume of foreign trade. (113) Despite this, it remains unclear what measures have been taken to improve the effectiveness of China's customs officers. The language in the US-China MOU, 'shall take' rather than 'best efforts' imposes an affirmative legal obligation upon China that, from the available data, it has not met.

5. Shall make every effort to stop archaeological material looted or stolen from the mainland from entering the Hong Kong Special Administrative Region and the Macao Special Administrative Region with the goal of eliminating the illicit trade in these regions. (114)

Illegally excavated or stolen cultural property from mainland China has traditionally been smuggled out of Hong Kong and Macao before being moved internationally. (115) In particular, Hong Kong has functioned as the main place of transit for cultural objects over the past several decades. (116) The different legal and customs framework of mainland China and Hong Kong, including provisions regarding the export of Chinese cultural relics in particular has, at times, resulted in "illegally exported Chinese antiquities [being] traded openly in Hong Kong with only half-hearted attempts to provide them with an appearance of legitimacy." (117) Moreover, whereas major international auction houses such as Sotheby's are only now partnering with mainland Chinese auction houses to hold auctions in mainland China, (118) in 2013, Christie's became the first international auction house to obtain a licence to operate independently in mainland China. Top international auction houses have maintained locations in Hong Kong for decades and deal actively in the Asian art market. (119)

Although the meaning of 'every effort' and the level required is vague, stopping illicit export of cultural property into Hong Kong and Macao is difficult to accomplish. Although the Chinese Government may impose sanctions upon domestic auction houses that deal illegally in cultural relics by confiscating their profits or imposing a fine appropriate to the profits earned, or imposing criminal sanctions, (120) the Government may not similarly sanction auction houses outside mainland China. (121) Critics have further suggested that the legal market in Hong Kong for Chinese antiquities may undercut any progress created by import restrictions, estimating that between 2000 and 2004, the total antiquities auction market in mainland China and Hong Kong "increased approximately 700 per cent for the same materials that the US is being asked to restrict." (122)

Determining whether China has in fact 'made every effort' to prevent illicit export of cultural property out of mainland China is also difficult to the extent that one is looking for negative evidence, as in a lack of looting or illicit export. (123) Although CPAC is sometimes provided with reports of arrests of smugglers or looters to which it may refer when deciding whether to recommend to grant or renew a US-China MOU, reports of collectors and high-ranking officials, who form part of the collecting base, are often not included in the reports. (124) Accordingly, the information that China provides the United States regarding China's fulfilment of its obligation to make every effort to stop illicit export of its cultural property to Hong Kong may be incomplete. One is left to look at the continuing trade in Hong Kong and Macao of illicitly exported Chinese cultural objects to determine what efforts may have been made to reduce or stop it, or how effective they have been. (125) Customs reports may also help: a 2005 report indicated that over 30,000 smuggled cultural relics were confiscated by Shenzhen customs over the ten preceding years at the border between mainland China and Hong Kong through routine baggage checks. (126)

6. Agrees to use best efforts to further international interchange of archaeological materials for cultural, educational and scientific purposes in the following ways:

(1) promote long-term loans of archaeological objects of significant interest to a broad cross-section of American museums for public exhibition, education, and research purposes;

(2) promote increased institution-to-institution collaboration in the field of art history and other humanistic and academic disciplines relating to the archaeological heritage of China;

Also troublesome are long-term loans and institutional collaboration between China and the United States, one of the obligations included in the US-China MOU probably made as a concession to the museum community. Historically, Chinese artefacts and other cultural heritage objects have rarely been brought out of China and exhibited. (127) Prior to the US-China MOU, China's 2002 LPCR included a total ban on the export of cultural objects produced before 1795, (128) and permitted only temporary loans to foreign museums upon approval from SACH or the State Council. (129) The US-China MOU's provision that China use 'best efforts' to further international interchange of archaeological material through long-term loans imposes an immediately binding obligation upon China to increase its long-term loans beyond those outlined in the 2002 LPCR. Since 2009, several travelling, but not long-term, exhibitions of Chinese artefacts have stopped in the US, such as the exhibition of terra cotta warriors, 'Terra Cotta Warriors: Guardians of China's First Emperor', at the National Geographic Museum in Washington, D.C. and other American museums. (130)

But, the disjunction between China's obligations in the US-China MOU and its domestic laws became apparent in 2011. The Chinese Embassy requested the University of Pennsylvania Museum of Archaeology and Anthropology (Penn Museum) to return all materials included in the exhibition, 'Secrets of the Silk Road', whose artefacts had recently been excavated from desert burial sites in western China. (131) The request included two mummies, which would have been the first to ever be exhibited in the United States. (132) Had the artefacts in fact been removed as per China's request, the exhibition would have included only photographs, multimedia presentations, and a recreation of the site's excavation. (133)

To support its request to remove and return the artefacts, the Chinese Embassy cited a domestic law from 2003 prohibiting artefacts from being displayed overseas for more than one year. (134) Even after granting the extension of time for the loan to accommodate the Penn museum, the Embassy noted that it "just want[ed] the American public to know [China] has the relevant laws and the regulations ... [yjou've got to follow the laws." (135) However, the 2007 LPCR's three-year time limit for loans among domestic institutions and one-year limit for foreign loans (subject to a one-year extension upon approval) (136) violates the language of 'best efforts' required by the US-China MOU. This is particularly so where the Chinese Government continues to rely on domestic laws that precede the US-China MOU by several years. Moreover, the Penn museum had a history of working with Chinese archaeologists and scholars, and had advocated stronger import restrictions to prevent looting of cultural property. (137) Because no public explanation was offered for why a special extension was granted by the Chinese Embassy, the precedent set by this incident remains disconcerting for American museums and the public.

(3) promote the exchange of students and professionals in such fields as archaeology, art history, conservation, museum curatorial practices, and cultural heritage management between appropriate Chinese and US institutions; and

(4) facilitate the granting of permits to conduct archaeological research in China.

The exchange of conservation-related professionals between Chinese and US institutions has continued, although it's not clear whether it has increased. Regarding exchange of art history professionals, adjunct curator Chunchen Wang of the Museum of the Central Academy of Fine Arts in Beijing became the first mainland Chinese curator to hold such a position in an American museum when he accepted his position at the Broad Art Museum at Michigan State University in 2012. (138) Similarly, the US and Chinese Embassies sponsor the US-China Fulbright Program through which both American and Chinese students and professionals may study, teach or conduct research. (139) In particular, the Fulbright Specialist Program 'FSP' promotes short-term cultural interchange between United States and foreign professional; although the amount of cultural property-related research between US and China through the FSP is unclear, at least one workshop has been given on anthropological research methods by an American professional in northwestern China. (140) Disciplines and specialisations eligible for the FSP also include archaeology, cultural resource management and cultural preservation, and museum studies. (141) Through its Cultural Heritage Center, the US State Department also worked with non-governmental organisations and ministries of culture in Cambodia to host a regional workshop for law enforcement and cultural heritage officials in Southeast Asia in 2009, which China attended. (142)

As mentioned above, the process for foreign archaeologists to acquire permits to work in China is set forth in China's 2007 LPCR. (143) Regarding exchange of students and professionals in archaeology, foreign archaeologists are required to submit a special report to the administrative department in charge of cultural relics under the State Council for its permission. (144)aazza For students, the Institute for Field Research 'IFR', among other institutions, sponsored students for field study in Xi'an, China, at the Yangguanzhai Neolithic Site during Summer 2013. (145) Scholars from the Shaanxi Institute of Archaeology directed the project. (146)

Although any difference since the US-China MOU in the granting of permits for professional excavations, or US archaeologists' presence in China, remains unclear, the original 2007 law regarding foreign archaeologists' work process has been criticised for lacking specificity regarding how digs ought to be conducted. (147) China is accordingly working with the International Council on Monuments and Sites 'ICOMOS' to establish such international standards. (148)

7. Shall continue to license the sale and export of certain antiquities as provided by law and will explore ways to make more of these objects available licitly. (149)

China appears to have met its obligation to 'continue to license' the sale and export of antiquities. The last major revision to Chinese law on this subject appears to have been in 2002, when private collecting and circulation of cultural property was first generally legalised. (150) To track the export of cultural property, China has enacted the Administrative Rules for the Review of Export and Import of Cultural Property, and the Standards for Reviewing the Export of Cultural Property. (151) Despite China's legal framework regulating the export of its cultural property, data regarding China's issuance of export licences seems to not be available.

Notwithstanding rules prohibiting government cultural agencies' involvement in commercial operations like auctions, (152) the rapid growth of the Chinese art market has caused concern that the Government can no longer sufficiently regulate it. Before the United States retook its position in 2013 as the largest art market, in 2011 China overtook the United States as the world's largest art market as measured by auction and dealer sales, generating US$60.8 billion and representing 30 per cent of global market shares. (153) Fake antiquities and unlicensed sellers, nonetheless, remain a problem for mainland China's art and antiquity market, with SACH responding by increased regulation of authentication certificates for Chinese antiquities and tighter rules for auction houses. (154)

8. Agrees that its museums will refrain from acquiring restricted archaeological objects that are looted and illegally exported from mainland China to destinations abroad, unless the seller or donor provides evidence of legal exportfrom mainland China prior to the imposition of US import restrictions. (155)

Prior to the US-China MOU, China's cultural property laws already provided that Chinese museums could acquire objects only through licit means such as purchase, donation, legal exchanges or other means as provided under China's laws and administrative rules and regulations. (156) But, one major challenge to ensuring that Chinese museums refrain from acquiring restricted objects is a lack of information regarding the collections and objects themselves. Since 2010, Chinese authorities have conducted extensive surveys of cultural objects held in state-owned museums and collections, with an emphasis on listing particularly rare or valuable pieces. (157) Although authorities have yet to survey private museum collections, the Government claims to be informed of privately held objects once they are put up for auction, or are to be exported or imported. (158)

Because state-owned museums may acquire cultural property through private donation, strict procedures are already in place for classifying, cataloging, and managing their holdings to prevent acquiring illicitly obtained property. (159) This is especially important as some mainland Chinese collectors travel outside China to purchase antiquities with which they return to China as legitimate acquisitions. (160) Also, that private collecting long preceded its legalisation in 2002 potentially complicates a museum's ability to accurately track the legal export of objects donated to it by private collectors if they were acquired prior to 2002. (161) In contrast to the highly publicised restrictions that American museums face when considering the acceptance of gifts with questionable provenance, (162) information is not available as to what a public Chinese museum would do if offered an undocumented object.

9. Shall seek to improve regulation of its internal market for antiquities. (163)

Although China has a legal structure in place to regulate its domestic art market, its nascent state and the rapid rise in the market requires further regulation. Current regulations include pre- and post-sale and/or auction examinations and approval processes, a separate authorisation process for online auctioning, (164) and restrictions on how individual collectors may acquire movable cultural property and to whom they may sell it. (165) In a recent report, China declared there to be approximately 80 antique shops and 200 auction houses in China, which generate approximately 500 million RMB (approximately US$80,462,000) and 10 billion RMB (approximately US$1,609,240,000), respectively. (166)

Attempts at regulation, however, appear at times to be inadequate or simply ignored. For example, only in 2012 did SACH ban the auction of unearthed, stolen, looted or smuggled cultural relics. (167) Calls for increased regulation have arisen internally as well. According to Tuo Zuhai of China's Ministry of Culture, China's underdeveloped and unregulated gallery structure has led to an imbalanced market and a rise in fraud. (168) Whether laws in place are even routinely adhered to is also questionable. As of 2009, Chinese law permits the identity of art dealers and buyers to be kept anonymous during auction activities, which casts doubt as to whether the requirement of keeping records of what cultural property is auctioned, is, in practice, followed. (169)

10. Shall endeavour to strengthen regional cooperation within Asia for the protection of cultural patrimony; and, in the effort to deter further pillage in China, shall seek increased cooperation from other importing nations to restrict the import of looted archaeological material originating in China. (170)

Although there is no evidence that China has entered into regional bilateral agreements with other Asian countries, as of late 2010 it had entered into agreements similar to the US-China MOU with 12 other countries pursuant to the 1970 UNESCO Convention. (171) Notably, several of the countries with which China has entered into an MOU either do not require such an agreement to implement the 1970 Convention (e.g., Turkey, Egypt and Australia), or are themselves not a State Party to the 1970 Convention (e.g., Ethiopia). (172)

IV. PUBLIC POLICY AND RENEWAL OF THE US-CHINA MOU

Article 9 of the 1970 UNESCO Convention permits a State Party to the Convention "whose cultural patrimony is in jeopardy from pillage of archaeological or ethnological materials" to request the assistance of other States Parties to take measures, such as import controls, to help stop pillaging of cultural property. (173) Entered upon meeting the United States' domestic statutory requirements under the CCPIA, the US-China MOU is a product of the State Department's acceptance of CPAC's determination that, among other requirements, China had "taken measures consistent with the [1970] Convention to protect its cultural patrimony". (174) While the adequacy of such measures will be further addressed below, the rapid rise of China's art market and domestic auction houses will first be examined in relation to its request for import restrictions through an US-China MOU to prevent looting. An analysis of the impact of the US-China MOU on the US as well as and the decision whether or not to renew the US-China MOU will follow.

A. ANALYSIS OF THE US-CHINA MOU FROM A PUBLIC POLICY PERSPECTIVE: THRIVING DOMESTIC ART AND ANTIQUITY MARKET IN CHINA

As mentioned above, China possibly overtook the United States as the largest global art market in terms of auction and dealer sales in 2011, mostly a result from rising modern and contemporary fine art sales. (175) The Chinese art and antiques sector rose 177 per cent in 2010, and 64 per cent in 2011, which represents the fastest growth worldwide. (176) Domestic Chinese auction houses are increasing their presence within China, and are beginning to expand internationally, having already started with Hong Kong. (177) Established international auction houses are, for the first time, partnering with Chinese auction houses and companies so they may move into the mainland Chinese market. (178) For example, whereas in 2007 China accounted for only approximately five per cent of Sotheby's Asia turnover, accounted for 30 to 40 per cent in 2012. (179) Sotheby's (Beijing) Auction Co., Ltd, created through a joint venture between Sotheby's and state-owned Beijing GeHua Art Company, makes Sotheby's the first international auction house in mainland China. (180) Having held a small, single-work sale in 2012, Sotheby's (Beijing)'s first mainland auction in 2013 raised US$37 million. (181) Although Chinese law will prevent Sotheby's and other international auction houses from participating in the sectors like Chinese antiques, porcelain and calligraphy, (182) it imposes far fewer restrictions upon domestic auction houses.

As Chinese auction houses expand their presence and sales, the import restrictions in the US-China MOU may cause a disservice to American purchasers who may not be permitted to bring their purchases back to the US if an item's import is restricted in the US-China MOU. (183) For example, China Guardian's catalogues include archaeological items such as coins from the Tang and previous dynasties, which are prohibited from being imported into the United States. (184) Because current Chinese cultural property laws permit individuals to acquire movable cultural property at auction and the language of the 2007 LPCR does not appear to include a prohibition on foreigners, (185) the US-China MOU's import restrictions may cut off American collectors and museums from a portion of the international market. At the least, it causes complication and confusion for purchasers. Purchasers now need export licences from Chinese sellers, and have had legitimately purchased items nevertheless seized by the US Customs and Border Patrol. (186) In response, purchasers have required approval for the item's export before finalising the purchase, but this may be possible only with larger or more established dealers rather than small businesses or market vendors. (187)

B. MOVING FORWARD: THE DEBATE SURROUNDING THE DECISION TO RENEW THE US-CHINA MOU IN 2014

The debate regarding the renewal of the US-China MOU with China is much the same as the one in 2009 surrounding whether to enter into one at all. Very generally, much of the controversy is between those who believe import and trade restrictions are the most effective method to prevent and deter looting, and those who disagree and believe that China has not sufficiently met the statutory requirements outlined in the CCPIA for the US to enter into an agreement such as the US-China MOU. (188) Now that the United States and China have already entered into a bilateral agreement, the diplomatic pressure on the US not to strain ties with China introduces an additional concern and potential bias in the review process. (189) To some extent, the US's delegation of handling the implementation and review of agreements pursuant to the CCPIA to the Executive Branch has cornered the US into a situation where it must face diplomatic repercussions from declining to renew the US-China MOU, or indirectly cause a disservice to its own cultural property policy. (190)

1. Potential Results of Agreeing to Renew the US-China MOU in 2014

Renewing the US-China MOU will have a number of negative effects upon the United States: (1) continued exclusion from a portion of the international antiquity trade without a showing of rapid decline in looting in China; (2) increased effort and expense for US customs; (191) and (3) continued difficulties for American museums to secure long-term loans of Chinese materials for public exhibition. (192) First, the effect of US import restrictions is debated because of disagreement over how large the US market is for Chinese artefacts. Some commentators have suggested that because the US represents only a small part of the global market for Chinese antiquities, the import restrictions may not be very effective and may depend on how extensively China seeks similar agreements with other importing nations. (193) As noted above, there is no evidence of China having sought such agreements on a regional basis, but China has secured several similar agreements with nations of varying activeness as importing countries. (194) Moreover, in light of the 4th Circuit's declining to exercise judicial review regarding import restrictions on coins, (195) coins that Chinese auction houses continue to sell ought to be withdrawn from the list of prohibited items in the US-China MOU. Second, the lengthy list of restricted items, spanning approximately 76,000 years, may make it difficult for US customs to understand and implement the import restrictions effectively. (196) The United States has further agreed to assist China, where appropriate, in training its own customs officials. (197) Pointing to the strain on US Customs to enforce the US-China MOU's import restrictions is not meant to discourage proper enforcement, but rather to highlight the need for appropriate action on both the United States and China, as US Customs is already strained financially. (198) Finally, the controversy surrounding travelling and long-term loans of Chinese artefacts to American museums for exhibition appears to embody an ongoing problem with MOUs' requirements for the requesting State to encourage long-term loans. Often, the requesting State's domestic laws regarding loans fall far behind the commitment made in the MOU. (199) Although the controversy surrounding the Penn Museum loan implicated loans for a travelling exhibition rather than for a long-term loan, China's one-year time limit for foreign loans should be extended to comply with the US-China MOU.

2. Potential Results of Declining to Renew or Deciding to Amend the US-China MOU in 2014

Because the problem of looting persists in China, the United States may choose to not renew the US China-MOU if it finds that other nations 'having significant import trade' in the material whose import into the US is restricted are either not, or are not likely to implement similar restrictions. (200) But, this requirement of the CCPIA (201) has, arguably, often been read out of CPAC's determinations whether to recommend renewal or decline renewal. Accordingly, assuming the renewal of the US-China MOU, it should be amended upon its next five-year term starting in 2014. Particular areas to amend and to tighten regarding China's obligations in the US-China MOU include (1) increased numbers of long-term loans to American museums; (2) removal of coins from the list of items whose import into the United States is prohibited; and (3) efforts to protect its own cultural property though art market regulation and regional bilateral agreements. The result of an amended US-China MOU with increased pressure on China would both further the protection of its cultural property while, at the same time, ensure that the United States benefits from access to China's cultural heritage.

V. Conclusion

Certainly, the goal of the US-China MOU is for the US to assist China in prohibiting and preventing cultural property destruction from theft, looting, and illicit sales. Since entering the 2009 bilateral agreement, China has made strides to strengthen its domestic policies and legal framework to better protect its vast collection of cultural property. But, the factual findings regarding China's success in meeting its obligations in the US-China MOU indicate that there is a long way to go. Although the factual findings may not be complete, factors like China's admissions to UNESCO that looting and theft continue and China's top spot in the global art market, cast doubt as to whether the United States' import restrictions are effective or in the best interest of US cultural property policy. Although the 2009 US-China MOU will likely be renewed in 2014 despite these shortcomings, the intended balance between free trade in art and taking the necessary precautions to deter cultural property destruction could be restored by amending the MOU to include strengthened provisions on loans to American museums, better regulation of China's art market, and the exemption of Chinese coins from the designated list of prohibited items.

APPENDIX:

Hierarchy of China's Political Structure Concerning Cultural Property

(1) See Ben Janssens, 'China Overtakes the U.S. to Become the World's Largest Art and Antiques Market', Tefaf Maastricht: TEFAFNews, 17 March 2012, <http://www.tefaf.com/ DesktopDefault.aspx?tabid=148&tabindex=147&postid=6641>; Avery Booker, 'China Now World's Largest Art & Antiquities Market, But What Does It Mean?', Jing Daily: The Business of Luxury & Culture in China, 20 March 2012, <http://www.jingdaily.com/chinanow-worlds-largest- artantiquesmarket-but-what-does-this-mean/14538/>; see also Madeline O'Dea, 'How China Went from Art-Market Afterthought to World Auction Superpower', Art + Auction, 2 May 2012, available at <http://www.artinfo.com/news/story/802441/sphereofinfluence> (noting that Artprice's determination that China has the world's largest art market was based on auction sales from 2010). But see Clare McAndrew, 'U.S. Retakes Top Spot in Art Sales from China', Art Newspaper, 14 March 2013, <http://www.theartnewspaper. com/articles/US%20retakes%20top%20spot%20in%20art%20sales%20from%20China%20 /29104> (summarising art economist's latest findings that, based on sales in 2012, the US will resume its spot as the world's largest art market, but that China remains the most important emerging market).

(2) See Memorandum of Understanding Concerning the Imposition of Import Restrictions on Categories of Archaeological Material from the Paleolithic Period through the Tang Dynasty and Monumental Sculpture and Wall Art at Least 250 Years Old, U.S.-P.R.C., 14 Jan. 2009, [hereinafter US-China MOU], <http://eca.state.gov/cultural-heritage- center/intemationalculturalpropertyprotection/bilateral-agreements/china>.

(3) According to the State Department, the US-Canada MOU was allowed to expire in 2002 because Canada had got the problem of pillaging "well under control"; therefore, the US-Canada MOU was no longer necessary. U.S. Dep't of State, Bureau of Educ. and Cultural Affairs, Canada, Categories of Objects Subject to Import Restriction, <http://eca.state.gov/cultural-heritage-center/ intemational-cultural-property-protection/bilateral-agreements/Canada> (last visited 2 Jan. 2013).

(4) US-China MOU, above, note 2.

5 United Nations Educational, Scientific and Cultural Organization Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 14 Nov. 14, 1970, 823 U.N.T.S. 231 [hereinafter 1970 UNESCO Convention].

(6) 19 U.S.C. [section][section] 2601-13 (2006).

(7) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property--1970, UNESCO.org, <http://www.unesco.org/new/ en/culture/themes/movable-heritage-and-museums/illicit-traffic-of-cultural-property/1970convention^ (last visited 13 Jan. 2013).

(8) Id.

(9) Id.

(10) Id.

(11) List of States Parties to the 1970 UNESCO Convention, UNESCO.org, <http://www.unesco. org/eri/la/convention.asp?KO=13039&language=E#l> (last visited 13 Jan. 2013).

(12) 1970 UNESCO Convention, above, note 5, at Art. 9.

(13) S. Rep. No. 97-564, at 1 (1982), reprinted in 1982 U.S.C.C.A.N. 4078, 4098.

(14) Id.

(15) 19 U.S.C. [section] 2602 (enacting Art. 9 of the 1970 UNESCO Convention).

(16) Id. at [section][section] 2602(a)(l)(A)-(D).

(17) Id. at [section][section] 2602(a)(2)(A),(b).

(18) Id. at [section][section] 2602(a)(l)(A)-(D).

(19) Id. at. [section][section] 2602(e)(1),(2) (referring to causes for suspension under [section][section] 2602(d)(1),(2), where a party to the bilateral agreement with a significant import market in the restricted materials has not implemented import restrictions similar to those enacted by the US, or are not implementing such restrictions satisfactorily to deter pillage in the requesting State Party). Alternately, CPAC may recommend emergency import restrictions on the requesting State Party's archaeological or ethnological material if the State Party so requests and the President has determined that an emergency exists. See id. at [section][section]2603(a)-(c)(l).

(20) Id. at [section] 2605.

(21) Id.

(22) Id. at [section] 2065(f)((4)(A)-(B).

(23) See, e.g., Andrew L. Adler and Stephen K. Urice, 'Resolving the Disjunction Between Cultural Property Policy and Law: A Call for Reform', 64:1 Rutgers L. Rev. 117, 13859 (2011) (noting several cases in which CPAC has recommended import restrictions without satisfying all four statutory criteria set forth in the CCPIA, and increasing lack of transparency); see also 'The Who, What, Why and How of the Cultural Property Advisory Committee (CPAC): An IFAR Evening', 17 April 2008, 10 IFARJ. Nos. 3 & 4, at 32-33 (200809) [hereinafter An IFAR Evening], (Comments by Jack A. Josephson) (former CPAC Chair discussing frequent nonconformity with the CCPIA).

(24) Adler and Urice above, note 23, at 147 (citing 19 U.S.C. [section] 2605(0(6) and a letter from Richard R. Verna, Assistant Sec'y, Legislative Affairs, US Dep't of State, to Hon. John Culberson, Member of the House of Representatives (18 June 2009)).

(25) Comment by US in ratifying 1970 UNESCO Convention, UNESCO.org, <http://portal. unesco.org/en/ev.php-URL_ID= 13039&URL_DO=DO _TOPIC&URL_SECTION=201. html#STATE_PARTIES> (last visited 12 Jan. 2013).

(26) S. Rep. No. 97-564, at 6 (1982), reprinted in 1982 U.S.C.C.A.N. 4078, 4098.

(27) Paul M. Bator, 'An Essay on the International Trade in Art', 34 Stan. L. Rev. 275 (1982).

(28) Id. at 328-29.

(29) Id. at 330.

(30) Id. at 331.

(31) Id. at 332, 335.

(32) Id. at 336.

(33) Id.

(34) See, e.g., Ancient Coin Collectors Guild v. US Customs and Border Prot., 698 F.3d 171, 18385 (4th Cir. 2012), aff'g Ancient Coin Collectors Guild v. US Customs and Border Prot., 801 F. Supp. 2d 383 (D. Md. 2011) (declining to exercise judicial review of the State Department's determinations concerning Chinese and Cypriot coins or whether they should be excepted under the CCPIA's definition of archaeological or ethnological material, as well as holding that the State Department fulfilled the CCPIA's statutory requirements).

(35) 'New Moves in Cultural Property Pacts and on the Committee: Agreement with China', 10 I FAR J. Nos 3 & 4, at 8 (2008-09).

(36) Id.

(37) US-China MOU, above, note 2, at art. I [section] 1.

(38) Import Restrictions Imposed on Certain Archaeological Material from China, 74 Fed. Reg. 2838-02 (16 Jan. 2009) (to be codified at 19 C.F.R. pt. 12).

(39) US-China MOU, above, note 2, at art. I [section] 1.

(40) 19 U.S.C. [section] 2601 (2)(C)(i)(I)-(II).

(41) See US-China MOU, above, note 2, at art. II [section] 4, 7(1).

(42) Convention Concerning the Protection of the World Cultural and Natural Heritage, 23 Nov. 1972, 27 U.S.T. 37.

(43) States Parties: Ratification Status, UNESCO.org, <http://whc.unesco.org/en/statesparties/> (last visited 13 Jan. 2013).

(44) Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954, 249 U.T.S. 240

(45) UNESCO Convention on the Protection of Underwater Cultural Heritage, 2 Nov. 2001, 41 I.L.M.40.

(46) [Law of the People's Republic of China on the Protection of Cultural Relics], (promulgated by the Standing Comm. Nat'l People's Cong. 19 Nov. 1982, effective 19 Nov. 1982) [hereinafter 1982 LPCR], available at <http://www.ifar.org/icp_legislation.php?docid=1213309743>. On the 1982 Law, see generally He Shuzhong, 'The Mainland's Environment and the Protection of China's Cultural Heritage', (2000) V Art Antiquity and Law 19 at p. 22 and Philip Newell, 'The PRC's Law for the Protection of Cultural Relics' (2008) XIII Art Antiquity and Law 1.

(47) Gao Sheng, 'Recovering Illegally Removed Cultural Property and Improving Cultural Property Protection: A Chinese Perspective', (2009) XIV Art Antiquity and Law 6 (citing the Provisional Methods on the Prohibition of Rare Cultural Relics and Books and the Provisional Methods Governing Survey and Excavation of Ancient Cultural Sites and Tombs and the Reference Standards of Appraisal for Export of Cultural Relics).

(48) Id. at 5.

(49) Creation of Regulations by the State Council and Its Departments, China Internet Information Center, <http://www.china.org.cn/english/kuaixun/76340.htm> (last visited 15 March 2013).

(50) Id.

(51) Wen wu bao hu fa [Law on the Protection of Cultural Relics] (promulgated by the Standing Comm. Nat'l People's Cong., 28 Oct. 2002, effective 28 Oct. 2002) [hereinafter 2002 LPCR]; Wen wu bao hu fa [Law of the People's Republic of China on Protection of Cultural Relics], (promulgated by the Standing Comm. Nat'l People's Cong. 29 Dec. 2007, effective 29 Dec. 2007) [hereinafter 2007 LPCR], <http://www.ifar.org/icp_legislation. php?docid=1282593198> (amending only articles 22, 23, and 40, and otherwise leaving the 2002 LPCR intact).

(52) 2007 LPCR, above, note 51, at art. 2(l)-(5).

(53) Specific provisions regarding China's domestic policies regarding cultural property protection will be discussed below, in sections lll.B. and IV.

(54) See, e.g., Gao, above, note 47, at 10 (referring to China's Criminal Law of 1997, which provides provisions for criminal liability for activities involving damage to of theft of both movable and immovable cultural property); see also [Measures of the People's Republic of China for the Administration of the Foreign-related Archaeological Activities], (approved by the State Council, 31 Dec. 1990, promulgated by the State Bureau of Cultural Relics on 22 Feb. 1991), available at <http://www.ifar.org/icp_legislation.php?docid=1213300376>; [Provisional Measure on the Recognition and Administration of Cultural Relics], (promulgated by the Ministry of Culture 8 Aug. 2009, effective 1 Oct. 2009), available at <http://www. ifar.org/icp_legislation. php?docid=l 291674124>.

(55) See Appendix I for a diagram of China's political structure relating to cultural property.

(56) 2007 LPCR, above, note 51, at art. 8.

(57) Id. at arts 9-10.

(58) Report on the application of the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property (China) (2010-11) [hereinafter 2010-11 China UNESCO report], available at <http://www.unesco.org/new/en/ culture/themes/movable-heritage-and-museums/restitution-of-cultural-property>.

(59) For example, information regarding two requirements that China "[s]hall regularly publicize this Memorandum of Understanding and the reasons for it through available outlets of communication" and "[s]hall regularly provide the Government of the U.S. with information concerning the implementation of this Memorandum of Understanding" was not available.

See US-China MOU, above, note 2. However, it remains unclear whether information regarding China's obligation to provide the US information concerning its implementation of the US-China MOU has been made available to the State Department or CPAC.

(60) US-China MOU, above, note 2, at art. II [section] 2.

(61) 2010-11 China UNESCO report, above, note 58.

(62) Id. at 7.

(63) Id.

(64) 2007 LPCR, above, note 51, at art. 12.

(65) See Stefan Gruber, 'Protecting China's Cultural Heritage Sites in Times of Rapid Change: Current Developments, Practice and Law', 10 (3&4) Asia Pac. J. ofEnvtl. L. 253, 292 294-95 (2008) (noting that in Henan in 1998, several hundred people, including local farmers on commission from antiques dealers, looted a newly discovered archaeological site without seeming to know that their actions were wrong, and that local authorities first refused to acknowledge that the site had archaeological value and then stopped the looting only after reporters threatened to air video footage of it).

(66) Stefan Gruber, 'The Fight Against the Illicit Trade in Asian Cultural Artefacts: Connecting International Agreements, Regional Cooperation, and Domestic Strategies', 3(2) Asian J. Int'l L. 1,20-21 (2013).

(67) See Gmber, above, note 65 (noting that many collectors do not know the Chinese laws on cultural property protection).

(68) 2007 LPCR, above, note 51, at art. 11.

(69) Mary Elizabeth Williams, 'Captain Gunther's 'Loot': Antiquities from China's Summer Palace Continue to Sell at Auction', Saving Antiquities for Everyone (SAFE), (31 Jan. 2012), <http://www.savingantiquities.org/captain-gunters-loot-antiquities-from-chinas-summerpalace-continue-to-sell-at- auction/(quoting Andrew Jacobs, China Hunts for Art Treasures in U.S. Museums', N.Y. Times, 17 Dec. 2009, <http://www.nytimes.com/2009/12/17/world/ asia/17china.html?_r=0>, and Cheng Yingqi, 'For Investors, Glamorous Bounty Lies in Looted Treasure', China Daily, 15 Dec. 2010, <http://www.chinadaily.com.cn/china/2010-12/15/ content_11702027.htm>).

(70) 2007 LPCR, above, note 51, at arts. 64, 66, 70, 72.

(71) US-China MOU above, note 2, at art. II [section] 3.

(72) Timothy J. Horsley et al., 'Investigating Ancient Landscapes and Settlement Patterns in the Chengdu Plain, Sichuan, China', 33 ArcheoSciences (Supplement) 187, 187-88 (2009).

(73) Besides the passage of the Provisional Measures on the Recognition and Administration of Cultural Relics in 2009, it does not appear that laws relevant to archaeological research have been passed since 2009. Some, such as The Rules of the People's Republic of China for the Administration of Foreign-related Archaeological Activities, date back to 1991.

(74) 2010-11 China UNESCO report, above, note 58, at 3.

(75) 2007 LPCR, above, note 51, at art. 5 ("All cultural relics remaining underground or in the inland waters or territorial seas within the boundaries of the People's Republic of China are owned by the State.").

(76) 2010-11 China UNESCO report above, note 58, at 3. Because Taiwan, Hong Kong, and Macao are not covered under the US-China MOU, efforts to eliminate illicit trade of Chinese cultural property into these regions will be discussed below, in section II.B.5.

(77) Id.

(78) Id.

(79) Id.

(80) Id.

(81) Id.

(82) 'Official Reveals China's Success in UN Heritage Sites', The Institute of Archaeology, Chinese Academy of Social Sciences [hereinafter IA CASS], 12 Dec. 2012, <http://www. kaogu.cn/en/detail.asp?ProductID=3775>.

(83) US-China MOU, above, note 2, at art. II [section] 4.

(84) Newell, above, note 46, at p. 20.

(85) 2010-11 China UNESCO report, above, note 58, at 4.

(86) Id.

(87) Id.

(88) Tania Branigan, 'China's Tomb Rraiders Laying Waste to Thousands of Years of History, Guardian, 1 Jan. 2010, <http://www.guardian.co.uk/world/2012/jan/01/china-tomb-raidersdestroy-relics>.

(89) 2007 LPCR, above, note 51.

(90) Id. at art. 10.

(91) Id.; cf Newell, above, note 46, at pp. 15-16 (arguing that some analysts consider such a broad provision helpful as it will increase as funds increase overall and because provisions for funding are difficult to enforce; however, Newell also criticises the Chinese Government's failure to reserve any funds to financially reward individuals for implementing cultural property regulations as outlined in the LPCR).

(92) Branigan, above, note 88.

(93) Id.

(94) Id.

(95) Id

(96) Id

(97) See id. Still, because the total number of tombs and relics are unknown, the importance of these numbers of investigated cases and recovered relics may be relative.

(98) Michael Bristow, 'Forbidden City Art Theft Embarrasses Beijing Officials, BBC, 11 May 2011, <http://www.bbc.co.uk/news/world-asia-pacific-13356725>.

(99) 'China to Conduct Moveable Cultural Relics Census', 16 Oct. 2012, IA CASS, <http://www.kaogu.com.cn/en/detail.asp?ProductID=3652>.

(100) Id.

(101) Id.

(102) 'Census Declares Thousands of China's Heritage Sites 'Disappeared", Popular Archaeology, 7 Feb. 2012, <http://popular-archaeology.com/issue/december-2011/article/census-declaresthousands-of-chinas- heritage-sites-disappeared>.

(103) Natalia Mihailova, 'China's Choice: Cultural Heritage or High-Speed Rail', gbtimes: The Third Angle, 27 Mar. 2012, <http://gbtimes.com/dial-beijing/chinas-choice-cultural-heritageor-high-speed-rail>.

(104) 2007 LPCR, above, note 64, at arts 13-26.

(105) Katrinka Ebbe, Guido Licciardi, & Axel Baeumler, 'Conserving the Past as a Foundation for the Future, China-World Bank Partnership on Cultural Heritage Conservation' 39 (The World Bank Working Paper No. 65899, 2011).

(106) See The Uyghur Human Rights Project, The Uyghur Am. Ass'n, 'Living on the Margins: The Chinese State's Demolition of Uyghur Communities' 22-23 (2012), available at <http://uhrp. org/press-release/new-report-uhrp-living-margins-chinese-state%E2%80%99s-demolitionuyghur-communities.html>.

(107) US-China MOU, above, note 2, at art II [section] 5.

(108) 2007 LPCR, above, note 64 at arts. 60-62.

(109) 2010-11 China UNESCO report, above, note 61, at 1.

(110) Id.

(111) Id.

(112) Id.

(113) Id.

(114) US-China MOU above, note 2, at art II [section] 6.

(115) Branigan, above, note 88.

(116) Gruber, above, note 66, at 15.

(117) Id.

(118) See 'Sotheby's to Launch First International Art Auction House in China by Partnering with State-Owned Art Company', Artforum, 25 Sept. 2012, <http://artforum.com/archive/ id=34573>.

(119) Examples include Sotheby's, <http://www.sothebys.com/en/inside/locations-worIdwide/ hong-kong/overview.html>; and Christie's, <http://www.christies.com/about/locations/hongkong/>.

(120) 2007 LPCR, above, note 51, at arts 71-73.

(121) However, they may exert diplomatic pressure.

(122) Bernard Isaac Weinstein Baskin, Note, 'Historical Heist: An Economic Argument Against Embargoing Chinese Cultural Property', 8 Wash. U. Global Stud. L. Rev. 107, 119 (2009) (citing William G. Pearlstein, People's Republic of China, Request for Import Restrictions on Certain Cultural Materials, Comments of William G. Pearlstein to CPAC (17 Feb. 2005), available at <http://www.golenbock.com/pub-s.htm>). See 'An IFAR Evening', 17 April 2008, 10 IFAR J. Nos. 3 & 4, at 44 (2008-09) (statements of Patty Gerstenblith).

(123) See 'An IFAR Evening', 17 April 2008, 10 IFAR J. Nos. 3 & 4, at 44 (2008-09) (statements of Patty Gerstenblith).

(124) Id. (statements of Kate Fitz Gibbon).

(125) See Madeline O'Dea, 'Looted Imperial Treasure Hits the Block at Christie's Hong Kong', Artinfo, 8 Dec. 2010, <http://www.artinfo.com/news/story/36537/looted-imperial-treasurehits-the-block-at- christies- hong-kong/> (noting that three works sold were originally looted by French and British troops at the Old Summer Palace in Beijing, and were purchased by a Hong Konger).

(126) Gao, above, note 47, at 5.

(127) Matthew R. Hoffman, Note, 'Cultural Pragmatism: A New Approach to the International Movement of Antiquities', 95 Iowa L. Rev. 665, 670 (2010).

(128) Id.

(129) 2007 LPCR, above, note 51, at art. 62 (requiring that all cultural relics taken out of China for foreign exhibition be approved by SACH or the State Council, but not specifying a maximum duration for the loan).

(130) David Braun, 'Terra Cotta Warriors go to Washington', National Geographic News Watch, 17 Nov. 2009, <http://newswatch.nationalgeographic.eom/2009/l l/17/523_terra_cotta_ warriors/>.

(131) Id.

(132) The Penn Museum had been later added as the third and final stop for the exhibition, which had already been shown at the Bowers Museum and the Houston Museum of Natural Science. Randy Kennedy, 'China Asks Penn to Remove All Artifacts From 'Silk Road' Exhibition', N. Y. Times Arts Beat (2 Feb. 2011, 5:40 PM), <http://artsbeat.blogs.nytimes. com/2011/02/02/china-asks-penn-museum-to-remove-all-artifacts-from-upcomingshow/?scp=2&sq=uighur&st=cse>.

(133) Randy Kennedy, see above, note 132.

(134) 'Penn Museum Kowtows to Chinese to Regain Exhibit', Cultural Property Observer (12 Feb. 2011, 7:15 PM), <http://culturalpropertyobserver.blogspot.com/2011/02/university-ofpennsylvania-museum. html>.

(135) Id.

(136) 2007 LPCR, above, note 51, at art 40; [Regulations for the Implementation of the People's Republic of China on Protection of Cultural Relics], (promulgated by the State Council 13 May 2003, effective 1 July 2003), at art. 50 [hereinafter 2003 LCPR], available at <http:// www.ifar.org/icp_legislation.php7docidM213286449>, Kennedy, above, note 133.

(137) Kennedy, above, note 132.

(138) Helen Stoilas, 'Director Aims to Bring the World to Michigan, Museums', Art Newspaper, (8 Nov. 2012), <http://www.theartnewspaper.com/articles/Director%20aims%20to%20bring%20 the%20world%20to%20Michigan/27981 >.

(139) US Dep't of State, Embassy of the United States Beijing, China, Culture & Education, China Fulbright Program, available at <http://beijing.usembassy-china.org.cn/fulbright_program. html>.

(140) See US Dep't of State, Fulbright Specialist Program At-a-Glance, available at <http://exchanges.state.gov/us/program/fulbright-specialist-program>; see also Guven Witteveen, 'On the Fulbright Specialist Program', archaeoinaction.com, 22 Feb. 2013, <http:// archaeoinaction.info/2013/02/22/on-the-fulbright-specialist-program/>.

(141) The Fulbright Program, Fulbright Scholar Program, Fulbright Specialist Program, available at <http://www.cies.org/specialists/joining_the_roster/sub_discipline.htm>.

(142) US Dep't of State, Cultural Heritage Center, Special Projects, Regional Workshops, available at <http://eca.state.gov/cultural-heritage-center/special-projects>.

(143) 2007 LPCR, above, note 51, at art. 33.

(144) Id.

(145) Archaeological Institute of America, Fieldwork, The Yangguanzhai Project, China, AIA, available at <http://www.archaeological.org/fieldwork/afob/10915>.

(146) Id.

(147) Newell, above, note 46, at p. 25.

(148) US-China MOU above, note 2, at art. II [section] 9.

(149) Id.

(150) Newell, above, note 46, at p. 36 (emphasising a list of excepted objects such as State-owned or previous objects classified by the State).

(151) See 2010-11 China UNESCO report, above, note 58, at 4.

(152) Id. at 39.

(153) Janssens, above, note 1.

(154) See Zhong Tonyue, 'Fake Relics Rampant in China Antique Market', Press TV, Shanghai, 13 April 2012, <http://www.presstv.ir/detail/236050.html>

(155) US-China MOU, above, note 2, art. II [section]10.

(156) 2007 LPCR, above, note 64, at art. 37.

(157) 2010-11 China UNESCO report, above, note 58, at 2.

(158) Id.

(159) Newell, above, note 46, at p. 33.

(160) See id. at 43.

(161) Id. at 37.

(162) Ralph Blumenthal & Tom Mashberg, 'The Curse of the Outcast Artifact', N. Y. Times, 12 July 2012, <http://www.nytimes.com/2012/07/15/arts/design/antiquity-market-grapples-withstricter-guidelines-for- gifts.html?pagewanted=all&_r=0>.

(163) US-China MOU, above, note 2, at art. II [section] 11.

(164) 2010-11 China UNESCO report above, note 58, at 5.

(165) 2007 LPCR, above, note 51 at arts. 50-51.

(166) 2010-11 China UNESCO report, above, note 58.

(167) China's cultural relics watchdog regulates auctions', Global Times, 6 July 2012, <http://www. globaltimes.cn/content/719426.shtml>.

(168) Li Xiao, 'Art Market Boom Leads to Calls for Regulation', Xinhua News, 14 June 2012, <http://news.xinhuanet.com/english/china/2012-06/14/c_131652137.htm>.

(169) Gao, above, note 47, at 15.

(170) US-China MOU, above, note 2, at art. II [section] 12.

(171) 2010-11 China UNESCO report above, note 58, at 6. China has bilateral agreements with Peru, Italy, India, the Philippines, Chile, Cyprus, Venezuela, Turkey, Ethiopia, Australia, and Egypt. Although it is unclear whether any of these nations have a significant market in Chinese cultural property, prominent market nations such as France, Great Britain, and Japan

(172) Wang Yunxia, Remarks at the Illicit Traffic in Cultural Objects: Law Ethics and the Realities Workshop Co-organized by the Institute of Advanced Studies and the Law School of the Univ. of W. Austl. (4-5 Aug. 2011), 18 Int'lJ. of Cultural Prop. (UK) 453-57 (2011).

(173) The 1970 UNESCO Convention, above, note 5, at 231.

(174) 19 U.S.C. [section][section] 2601-13 (2006).

(175) Janssens, above, note 1.

(176) Id.

(177) In Oct. 2012, top domestic auction house China Guardian Auctions held an auction in Hong Kong oh the same weekend as Sotheby's. This was soon followed by another leading domestic auction house, Beijing Poly International Auction, whose first sale in Hong Kong coincided with a Christie's auction. China Guardian's auction raised approximately $58.6 million dollars, more than double the estimated amount. Kelvin Chan, 'China Art Auctioneers Face Off With Foreign Rivals', Associated Press, Hong Kong, 8 Oct. 2012, available at <http://bigstory.ap.org/article/china-art-auctioneers-face-foreign-rivals>.

(178) Mary Huber, 'Sotheby's and Beijing GeHua Company Plan to Join Forces', 21 Sept. 2012, Art in America, <http://www.artinamericamagazine.com/news-opinion/the-market/2012-09-21/ sothebys-and-beij ing-gehua-art-company-plan-to-j oin-forced/>.

(179) 'First International Art Auction for Mainland China, AFP, 27 Sept. 2012, available at <http:// www.google.com/hostednews/afp/article/ALeqM5iWzQlAW5wZ2h3wgvlgwkIR9Ml I Ww?d ocId=CNG.5c22d59ada 105a6ebcd3d6e0261 b35fd.561 >.

(180) Huber, above, note 178.

(181) 'Sotheby's Makes History With First-Ever Chinese Mainland Auction', Artinfo, 28 Sept. 2012, <http://www.artinfo.com/news/story/829336/sothebys-makes-history-with-firstever-chinese-mainland>; 'Sotheby's First Mainland China Auction Raises $37 Million', Bloomberg, 2 Dec. 2013, available at <http://www.bloomberg.com/news/2013-12-01/zaowou-ki-s-12-5-million-painting- sets- artist-record.html>.

(182) Id.

(183) Import Restrictions Imposed on Certain Archaeological Material from China, 74 Fed. Reg. [section] 2838-02 (16 Jan. 2009) (to be codified at 74 C.F.R. pt. 12).

(184) China Guardian Auctions Co., Ltd. Online catalogue, available at <http://english.cguardian. com/filter.php?id= 11 &square=yes>.

(185) See 2007 LPCR, above, note 51, at arts 50-59.

(186) See Daniel Grant, 'Buying Antiquities Abroad Requires Law Exams, Too', Boston Globe, 17 June 2012, <http://www.bostonglobe.com/lifestyle/travel/2012/06/16/know-buying-antiques-abroad/ gEoKBoY3o7dSiCZhKxFooN/story.html> (New York-based collector purchases Tang Dynastyera horse figurine in Hong Kong in 2009 shortly before US-China MOU goes into effect, and must return to Hong Kong to get proper documentation from dealer before entering the US).

(187) See id.

(188) See Autumn L. Marton, Note, 'On Rabbits, Rats and Low-Hanging Fruit: Rethinking the Impact of International Agreements on China's Domestic Cultural Property Protection', 23 Colum. J. Asian L. 217, 229 (2009) (observing that the sides of the debate can be identified by professional relationship with cultural property; i.e., archaeologists and anthropologists generally favour trade restrictions, whereas auction houses, dealers, private collectors and curators generally disfavour the restrictions).

(189) Sec Rhonda Schechter, 'Preventing Pillage and Promoting Politics: The Dual Goals of the 2009 U.S.-China Bilateral Agreement to Restrict Imports of Chinese Cultural Property', (2009) XIV Art Antiquity and Law 317, 23 (noting that the US-China MOU's "aspirational language may be attributable, at least in part, to the fact that while the U.S.'s professed goal in entering into the agreement was to protection China's cultural property, the U.S. also acted with the implicit goal of promoting U.S.-China relations").

(190) See, e.g., Bator, above, note 27 at 335-36 (noting that although delegation to the Executive Branch was desirable for its flexibility, the State Department may be sensitive to claims that foreign relations with the exporting country could be improved with increased import restrictions).

(191) 'ICE and CBP Officials Return Artifacts to the People's Republic of China', US Immigration and Customs enforcement (11 Mar. 2011), <http://www.ice.gOv/news/releases/l 103/11031 lwashingtondc.htm> (publicising repatriation of numerous seized artefacts pursuant to the US-China MOU and 'Operation Great Wall' as well as noting that the ICE and CBP officials receive training from the State Department and Smithsonian Institution).

(192) See Kennedy, above, note 132.

(193) Schechter, above, note 189, at 16.

(194) See 2010-11 China UNESCO report, above, note 58.

(195) See ACCG, 698 F.3d at 184.

(196) Schechter, above, note 189, at 14.

(197) Marton, above, note 188, at 235.

(198) See generally James A.R. Nafziger, 'Seizure and Forfeiture of Cultural Property by the U.S.', 5 Vill. Sports & Ent. L.J. 19, 20 (1998).

(199) See, e.g., Stephen J. Knerly, Jr., Meeting of the Cultural Property Advisory Committee to Review the Request of the Government of the Hellenic Republic to the U.S. of America for Imposing Import Restrictions Under the Cultural Property Implementation Act, Statement of the Association of Art Museum Directors, Presentation, available at <http://aamd.org/ advocacy/> (discussing, in reference to Greece's 2010 request for an MOU, Italy's first attempt to pass domestic legislation to allow the types of long-term loans to which it committed in a renewed US-Italy MOU).

(200) See 19 U.S.C. [section] 2602(a)(l)(C)(i) (2006).

(201) Id.

([dagger]) Since this article was written, it has been announced that the Memorandum of Understanding between China and the United States will be extended - see <http://www.state.gOv/r/pa/prs/ps/2014/01/219636.htm>.

* May 2014 J.D. candidate at the University of Miami School of Law. I would especially like to thank Professor Stephen K. Urice for his immense guidance and help. 1 also thank Stephen J. Knerly, Jr. for his suggestions and corrections. Any errors or omissions are, of course, my own.
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