A Study On The Approaches To The Cross-Border Repatriation Of "Two Steeds Of Zhao Mausoleum"

With five thousand years of history and civilization,China has witnessed the rise and fall of many dynasties,cultural evolution and the development of science and technology.A cultural object is the epitome of a society in a certain period in terms of its politics,economy,culture and art.Therefore,studying cultural objects is the most direct method to trace thousands of years of Chinese history and culture,which will in turn help Chinese people understand rules of change and strengthen their national pride and cultural confidence.After the Opium War of 1840,China was plunged into the darkness of domestic turmoil and foreign aggression.The government of Republic of China sought to protect cultural objects through legal channels but failed to enforce relevant laws and regulations under such a national condition.As a result,huge amounts of valuable Chinese cultural objects were looted,stolen,and then illegally exported.Many have ended up in the hands of collectors and museums around the world.It is estimated that over 10 million Chinese cultural objects are lost overseas,including those housed in the Freer Gallery of Art,Metropolitan Museum of Art of New York City,British Library,British Museum,Louvre,National Library of France,Cernuschi Museum,Palace of Fontainebleau,Guimet Museum,and Tokyo National Museum.Covering a wide spectrum of Chinese history,most of the cultural objects lost overseas are priceless treasures both for archaeology and history studies and in Chinese civilization.Recent years,both governmental and non-governmental efforts have been taken inChina to demand the return of lost Chinese cultural objects,but successful repatriation cases remain few in number.Most of the objects were repatriated through international law enforcement cooperation or gift and purchase.Only two repatriation cases were settled by the means of cross-border litigation.The emergence of China as a global power has prompted the growing awareness among Chinese people of protecting cultural objects.Repatriation of Chinese cultural objects lost overseas has become a particularly urgent concern for the country.The repatriation is a complicated issue,demanding wide-ranging action.First,approaches to the repatriation of Chinese cultural objects vary and interact with each other,such as legal channels where litigation is conducted to retrieve cultural objects in foreign courts,diplomatic negotiation,international law enforcement cooperation,and donation and purchases by the Chinese institutions or individuals.Second,all these approaches are faced with some challenges.For example,as most countries of origin are developing countries with unstable economic development,they lack sufficient human resources and expertise for lengthy cross-border litigation,and money to purchase the lost cultural objects,thus hindering the repatriation.Lastly,the repatriation of cultural objects is particularly challenging in China's context.A substantial number of Chinese cultural objects are lost and one can hardly find a detailed record in this regard.Furthermore,many cultural objects were lost in mid19 th century,over a hundred year ago,which makes it difficult to collect explicit evidence about the lost cultural objects,such as causes of loss.In addition,legal obstacles exist due to general provisions,lack of retroactive effect of relevant international conventions and limited number of the state parties to the conventions.Last but not the least,as the recovery of cultural objects involves the study of history,anthropology,archaeology,sociology,arts,and legal areas including public international law,private international law,and civil and commercial law,great efforts should be taken to clarify those intertwined areas first.Those issues mentioned above are major challenges to the repatriation of Chinese cultural objects.It is thus crucial to investigate the issues and secure the return of these objects lost overseas.This paper investigates the case regarding the repatriation of two of the “Six Steeds of Zhao Mausoleum” through cross-border litigation and in accordance with relevant international convention,and then discusses the application and plausibility of judicial approaches in similar cases where Chinese cultural objects were looted andtrafficked abroad.The “Six Steeds of Zhao Mausoleum” refer to a set of six blue stone reliefs of steed(namely,Quanmaogua,Shifachi,Baitiwu,Telebiao,Qingzhui,and Saluzi)flanking a tomb at the north of Zhao Mausoleum,the mausoleum of Emperor Taizong(the second emperor of the Tang dynasty of China)and his wife,Empress Wende,located at Liquan county,Shaanxi Province,China.The six rectangular stone horse reliefs depict stories between Emperor Taizong and his six beloved war horses,and exemplify magnificent carving techniques.As the historic evidence of the cultural exchange in the early Tang dynasty,they are historically irreplaceable in China with regards to their artistic value,sculpture techniques and cultural inheritance.Unfortunately,they were stolen and damaged in the early 20 th century.Among them,the broken “Saluzi” and “Quanmaogua”(referred to as the“Two Steeds of Zhao Mausoleum”)were smuggled out of China after being transferred several times,and are now exhibited at the University of Pennsylvania Museum.Although the Two Steeds of Zhao Mausoleum embody Chinese traditional culture and legendary origins,and are of great significance to the study of Chinese art and history,they have not been returned to China despite all the efforts made by the Zhaoling Museum,scholars,social groups and organizations.As such,it is proved that only patriotism cannot make sure the successful retrieval of cultural objects.This paper aims to study whether the Two Steeds of Zhao Mausoleum can be repatriated by legal means,and to provide theoretical reference for other similar cases of cultural repatriation.The main body of this paper is divided into four chapters.In Chapter One,the author briefs on China's history and status quo of cultural repatriation.By analyzing theoretically cultural nationalism and internationalism,the author discusses the trends and attitudes of the international community towards the return of cultural objects to its origin country.In Chapter Two,the author explains why the Two Steeds of Zhao Mausoleum are now exhibited at the University of Pennsylvania Museum.Several major international laws concerning cultural repatriation are introduced,including the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict(hereinafter referred to as the1954 Hague Convention),the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import,Export and Transfer of Ownership of Cultural Property(hereinafter referred to as the 1970 Paris Convention),and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects(hereinafter referred to asthe 1995 Rome Convention).Relevant articles in the above three conventions are discussed to figure out whether the repatriation of the Two Steeds of Zhao Mausoleum have legal grounds,along with the weak boundedness of international conventions.In Chapter Three,the author analyzes the possibility of successful repatriation of the two steeds through cross-border litigation,in which several issues must be tackled including the qualification of litigation subjects,law application,recognition of bona fide purchasers in American and international laws,prescribed period for litigation as well as the extraterritorial effect of foreign public law.The discussion of these issues will help figure out the possibility of repatriation of lost cultural objects including the Two Steeds of Zhao Mausoleum,and the difficulties that may encounter during the litigation process.In Chapter Four,practical suggestions for cultural repatriation in China are provided.First,successfully settled or ongoing cultural repatriation cases through cross-border litigation are used to demonstrate the effect and value of cross-border litigation.The author believes that the legal mean should be focused while combining other repatriation approaches.Second,some deficiencies in China's cultural objects protection law and other relevant laws are pointed out,and several solutions are proposed in order to better agree with overseas laws or international conventions.It is suggested that a data collection system or catalog for lost cultural objects should be established specifically,as part of the effort to strengthen China's law for retrieving cultural objects.At last,the soft law of the ICOM Code of Ethics for Museums is introduced as another mean for cultural repatriation,with an aim to clarify the boundedness of code of ethics as well as the duties of museums.To sum up,with respect to the repatriation of cultural objects looted overseas,China is mainly in the stage of theoretical study and has not established a systemic and efficient legal system where the power and obligations of competent authorities are designated.Moreover,considering the large amounts of China's looted cultural objects,there are many other aspects of cultural repatriation for further study.In this paper,the author studies on the practical approaches to cultural repatriation through cross-border litigation.It is believed that China will witness successful cultural repatriation in the near future.