Jurisdictional Problem

The jurisdictional problem is the chief problem of transnational litigation. The identification of the appropriate forum to hear disputes on cultural objects is determined by jurisdictional rules and choice between state courts within the national legal sphere. It is universally acknowledged that a lawsuit brought on in relation to a cultural objects dispute shall be under the jurisdiction of the place where the cultural object is situated. ^{Footnote 36} The 32 gold foils were now situated in the Guimet Museum. Therefore, the French court had the jurisdiction to preside over this case. If the Chinese government had chosen to file a lawsuit in a Chinese court rather than in a French court, it would have to face the issues of recognition and enforcement of the judgment in this litigation. For reasons of national interest and cultural internationalism, it was possible that the French court would not be willing to recognize and enforce this judgment on the return of the 32 stolen gold foils because the French court would want to avoid setting a precedent for other source nations. ^{Footnote 37} In addition, without a Sino-French bilateral agreement on mutual legal assistance in civil matters, the recognition and enforcement of this judgment would also face great challenges.

The Issue of Characterization

Characterization is the second stage in the procedure to resolve a lawsuit involving a foreign law element, and this process is described in English law as classification. ^{Footnote 38} Through the analysis of the relevant provisions of the Property Law of the PRC and the Civil Code of France, we can solve the issue of characterization. To be more specific, on the basis of the Property Law, the stolen gold foils can generally be moved; they are not attached to property or land and can be touched and felt. ^{Footnote 39} Another side of the coin is that the Civil Code of France stipulates the definitions of movable and immovable property. That is, property is defined as immovable either by its nature or by its destination or by the object to which it applies. ^{Footnote 40} Movable property refers to things that can move from one place to another, whether they move by themselves or whether they can move only as the result of an extraneous power. ^{Footnote 41} As previously stipulated, these 32 stolen gold foils would have been classified as movable property by the French court.

The Qualification of the Litigation Subjects

It seems fair and reasonable that the individual claimant (plaintiff) could become a rightful litigation subject and could also file a lawsuit for the recovery of the stolen cultural objects in the court of a foreign nation. If the stolen cultural objects are owned by the state, is it possible that the government was regarded as a rightful litigation subject? In fact, it has been controversial in the legislation and judicial circles whether a government could bring a civil action to the court of another state as a rightful litigation subject. ^{Footnote 42} Legally speaking, a rightful litigation subject must meet the following requirements: first, a rightful litigation subject must have the capacity for action in the civil litigation and, second, a rightful litigation subject must have a direct interest relationship with the civil litigation in accordance with the legal provisions. ^{Footnote 43}

Back to the case of the stolen gold foils, the rightful litigation subject (plaintiff) should be the Chinese government because the ownership of the 32 stolen gold foils belongs to China, according to the provisions of the Law of the PRC on the Protection of Cultural Relics. ^{Footnote 44} However, unsurprisingly, the Chinese authorities refused to bring a lawsuit against the French government on the grounds that the Chinese government was reluctant to be regarded as a plaintiff or defendant in any foreign-related civil cases. From the Chinese authorities’ point of view, all states and governments are reluctant to answer charges in the courts of other states. It is generally supposed that the Chinese government “feared a loss of face” and simply preferred to authorize Bernard Gomez as the representative of the Chinese government. ^{Footnote 45} However, the truth of the matter was quite different. The majority of states hold that a state enjoys the right of state immunity if it is being sued in the court of another state. ^{Footnote 46} China is no exception.

In view of these facts, the Chinese government decided in 2006 to authorize Gomez to take action on behalf of the Chinese government to recover the 32 stolen gold foils by means of litigation. Therefore, Gomez and Deydier (and the Guimet Museum and the French Ministry of Culture) served as the litigants instead of the Chinese and French governments, which would greatly increase the probability that the Chinese government would win this lawsuit. The Chinese government’s decision carries a foreshadowing of what was to follow later on in the story. On 2 October 2006, Gomez helped the Chinese government to bring a criminal indictment against Deydier, the Guimet Museum, and the French Ministry of Culture simultaneously in a French court, ^{Footnote 47} accusing them of “concealment and laundering of artwork from international trafficking of goods and cultural objects” (Recel et blanchiment d’œuvres d’art issues du trafic international de biens et d’objets culturels). ^{Footnote 48} However, the presiding Judge Philippe Courroye dismissed this lawsuit as there was not enough evidence to support the claim that the 32 gold foils had been stolen from China. ^{Footnote 49}

Choice of Law

The relevant rules of French conflict of laws should be considered. France, like other European countries, has implemented the European private international law regulations, such as the Rome I and Rome II Regulations. ^{Footnote 50} These two regulations have universal application and include member states and non-member states. However, the case of the 32 gold foils falls outside the scope of the Rome Regulations due to the retroactive effect issue. Under the relevant provisions of France’s private international law, a lawsuit brought on in relation to a cultural objects dispute shall be under the jurisdiction of the place where the cultural object is situated. ^{Footnote 51} Therefore, the case of the stolen Chinese gold foils should be governed by, and construed in accordance with, French law.

Good Faith Acquisition

Good faith acquisition is a problem addressed in this case. Good faith purchasers are those “who conduct reasonable due diligence but have no reason to believe that objects purchased or obtained gratuitously are protected as cultural property.” Protection needs to be afforded to good faith purchasers; otherwise the legitimate international trade in art could be adversely affected. ^{Footnote 52} Had the present possessor (the Guimet Museum) acquired the title of the 32 gold foils in good faith? The answer was no. In fact, two possibilities existed explaining how the present possessor could have acquired a valid title to the gold foils: by transfer or by lapse of time. In this case, there was the relationship between the Guimet Museum and the private collectors in the acquisition by transfer. The 32 gold foils were stolen from the Eastern Zhou tombs in the Dapuzishan Mountain Region of Lixian County, Gansu Province. The Taiwanese antiquities dealer (the unauthorized possessor) purchased the 32 gold foils from antiquities dealers and sold them to Deydier and Pinault. Finally, these two private collectors donated the 32 stolen gold foils to the Guimet Museum. These stolen gold foils had obviously passed through several hands before reaching Deydier and the Guimet Museum, but the Guimet Museum still did not know how the late Taiwanese dealer obtained these gold foils. What is more, Deydier paid a far lower price for these gold foils compared to their true worth. ^{Footnote 53} Therefore, the claimant (the Chinese government) successfully argued that the private collectors did not purchase the gold foils in good faith, as a consequence of which the latter was not allowed to invoke Article 2280 of the French Civil Code at all. ^{Footnote 54}

The Principle of Due Diligence

The Taiwanese antiques dealer (the previous “owner”) and Deydier had an obligation to verify the provenance of the 32 gold foils in the first place. To be more specific, they should have ascertained the veracity and accuracy of all of the information supplied to them to explain the ownership history of the 32 stolen gold foils and uncovered additional information about their history. Although the Taiwanese antiques dealer had not offered a full set of documents that revealed the objects’ entire history, Deydier still bought them from him at the lower price. ^{Footnote 55} Therefore, Deydier cannot be treated as a good faith purchaser in this case. ^{Footnote 56}

Second, the Guimet Museum should also have exercised the principle of due diligence, according to the International Council of Museums’ Code of Ethics for Museums. However, the Guimet Museum had not ascertained whether or not the former possessors (Deydier and Pinault) had the proper title to the gold foils and still accepted their donation. ^{Footnote 57} Furthermore, the 32 gold foils were stolen from the Eastern Zhou tombs in the Dapuzishan Mountain Region of Lixian County, Gansu Province, and were Chinese cultural objects. According to the provisions of the Law on the Protection of Cultural Relics, if they are state-owned cultural objects, no individual can ever have a valid title to the state-owned cultural objects. ^{Footnote 58} That is to say, the Chinese government had the right make a claim for the recovery of the 32 gold foils from the present possessor, even if the present possessor was in good faith.

Statutes of Limitations

Statutes of limitations are an indispensable part of cultural property disputes. ^{Footnote 59} Legally speaking, statutes of limitations can be divided into acquisitive prescription and extinctive prescription. ^{Footnote 60} In France, statutes of limitations are considered to be a matter of substantive law because they limit the exercise of a substantive right rather than a legal remedy. ^{Footnote 61} Therefore, the determination of the applicable statutes of limitations will not depend on the law of the forum. Rather, the law applicable to the underlying substantive claims, which is determined primarily by a valid choice-of-law clause or, secondarily, by French conflict-of-law rules, will also govern the statute of limitations for those claims.

Article 2279 of the Civil Code of France stipulates the limitation period as follows: “The person or body who has lost an object or from whom it has been stolen may claim it during three years from the day of the loss or of the theft, from the one in whose hands he finds it, subject to the remedy of the latter against the one from whom he holds has purchased it.” ^{Footnote 62} In other words, the Chinese government should bring a lawsuit against the Guimet Museum within three years. Once the limitation period has run out, the Chinese government is without legal redress. However, if the Civil Code of France has other provisions concerning statutes of limitation, these provisions shall apply. The Chinese government neglected the possibility that they could raise a plea against temporary exception. Where the present possessor of a cultural object has lost or stolen it or has bought it at a fair or market, a public sale, or from a merchant selling similar objects, the original owner may have it returned to him only by reimbursing the possessor for the price that he paid. A lessor who claims, under Article 2102 of the Civil Code of France, that the movables were displaced without his consent and that they have been bought in the same condition, must likewise reimburse the buyer for the price that he has paid for them. All claims, in rem as well as in personam, are prescribed for 30 years, without the person who alleges that prescription being obliged to adduce a title or a plea resulting from bad faith being allowed to be set up against him. ^{Footnote 63}

In this case, the 32 stolen gold foils were obviously not bought at a fair or market or at a public sale. They were illicitly trafficked to France in 1993, and, thus, 22 years had passed by the end of October 2015. Therefore, it is reasonable to assume that the Chinese government still has the right to bring a lawsuit against the Guimet Museum. That is the reason why the French court accepted to hear the case in 2006. ^{Footnote 64}

The Burden of Proof

From the perspective of the French Civil Code, good faith is always presumed, and it is based on the person who alleges bad faith to prove it. ^{Footnote 65} The Chinese government should have lodged a claim that the onus was on the Guimet Museum to prove whether it held these gold foils unlawfully or dishonestly. Gomez (the plaintiff) claimed that the 32 stolen gold foils had been illicitly removed from China in 2006. ^{Footnote 66} Chinese scholars and archaeologists also further confirmed that the 32 gold foils were stolen from the Eastern Zhou tombs in the Dapuzishan Mountain Region. Therefore, the Guimet Museum should not have accepted this donation. ^{Footnote 67} However, in order to enrich their collections, the Guimet Museum did not exercise due diligence and received the gold foils from private collectors directly. ^{Footnote 68} Since transactions of state-owned cultural objects can never be legal, no good faith purchaser could have a valid title to these state-owned gold foils. ^{Footnote 69} The French government and the Guimet Museum had no valid argument against this point according to the Law on the Protection of Cultural Relics, when they negotiated with the Chinese government.

The Initial Proposal: Permanent Lien

On 25 March 2014, the fiftieth anniversary of the establishment of diplomatic relations between China and France, Chinese President Xi Jinping formally visited France to convey the Chinese people’s memories of the friendship between the two countries and the wish to strengthen the overall strategic partnership between the two countries. The French government also took this opportunity to strengthen diplomatic relations with China and agreed to return the 32 gold foils to China. There followed a series of requests and attempts at friendly negotiation between China and France.

The French government first proposed an unpaid and indefinite permanent lien on the 32 stolen gold foils to China at the end of 2014. Given that China and France belong to civil law systems, a “permanent lien” therefore can be explained as a “possessory lien.” The definition of a “lien” is that “the creditor has a right to remain in possession of the property under the lien until the debtor has satisfied his or her debt.” ^{Footnote 73} However, China and France would not be creating a creditor–debtor relationship in this case; there would not be a mortgaged relationship or a guarantee relationship. Therefore, the Chinese government did not accept the proposal of a so-called “permanent lien” on the 32 stolen gold foils, with the ownership of the items being shared between China and France. The Chinese government proposed that China should enjoy the ownership of the 32 gold foils outright. It was pity that both sides failed to agree on the initial proposal and made their own arguments. However, a compromise was emerging.

Repatriation of the 32 Gold Foils: Does It Violate the French Museum Law?

One question yet remaining was how to break through the barriers of French domestic law. According to the provision for the collections of museums, each public museum should give a numbered identification card to each cultural object. ^{Footnote 74} The 32 gold foils had already become part of the national patrimony. On 4 January 2002, the French Parliament promulgated and brought into effect the French Museum Law, which stipulates that all museums and institutions in France are barred from deaccessioning any objects since all such objects form part of the national patrimony or public property. ^{Footnote 75} In other words, any public or national museum has no right to give away any part of its collections to any other foreign nations. Therefore, how could the French government violate its domestic law in returning the 32 gold foils to China in order to strengthen its relationship with that country?

The following successful cases show it is possible. On 6 March 2002, legislation in France directed the release of the remains of Saartjie Baartman from the Museum of National History and their return to South Africa. ^{Footnote 76} The enactment was a rare example of a cross-border return mandated by a national statute. ^{Footnote 77} As of the date that Act came into force, the surviving remains of the person known as Saartjie Baartman ceased to form part of the public collections of the Museum of National History. ^{Footnote 78} On 4 May 2010, the French Parliament decided to repatriate 16 tattooed and mummified Maori heads to New Zealand, confirming that France can take moral responsibility for other countries’ human rights and pay respect to the wishes of indigenous communities. ^{Footnote 79} The success of these two cases provided inspiration for the resolution of the case of the 32 gold foils. However, the French Parliament did not enact and pass a similar national statute to facilitate their repatriation. Considering its own interests, the French government had to look for a compromise so that both sides could “save face.”

The Guimet Museum accepted the donation from Deydier and Pinault respectively. However, under the provision of the French Museum Law, this donation cannot be cancelled and neither can the national patrimony be transferred to a private person or to other foreign countries. ^{Footnote 80} However, the Ministry of Culture of the PRC and the Guimet Museum put forward an alternative way to solve this difficult problem. They began by negotiating with Deydier and Pinault. At the same time, the French government requested that the Guimet Museum reverse these two donations and so the gold foils were returned to these two private cultural collectors. Following this, the two collectors also agreed to cancel their donations and decided to sign a confidential contract with the Guimet Museum. Deydier and Pinault promised that the 32 gold foils would be delivered to the PRC within 30 days. On 13 April 2015, Pinault returned four hawk-shaped gold foils to the embassy of the PRC in the French Republic. Deydier returned 28 gold foils to the SACH on 13 May 2015. After one month of extensive preparatory work in classification, collation, and arrangement, the SACH eventually handed over the 32 gold foils to their place of origin (the Gansu Provincial Museum) on 20 July 2015 (Figure 6). ^{Footnote 81}

Figure 6.

32 Stolen Gold Foils (photo courtesy of the SACH and the Gansu Provincial Museum).

To sum up, it was the first time that French domestic law had authorized the return of an entire category of museum objects rather than a specific object, and it marked a success for the Chinese campaign to have the lost cultural objects returned.

What Can the Chinese Government Do?

The Chinese government and relevant functional departments should make further efforts to recover stolen archaeological objects. In this light, the Chinese government and the SACH should establish a systematic and comprehensive strategy for recovering archaeological objects. This strategy should have the following characteristics: objectivity and precision, comprehensiveness, and foresightedness. The target and direction of recovery must aim at understanding the current situation and all of the facts as well as the relevant national laws, analyze the pros and cons of the current models of repatriation, and improve the negotiation techniques.

I suggest, first, that, as far as Chinese legislation and judicial practice on archaeological objects are concerned, the Chinese government should fully realize the importance and necessity of improving and strengthening Chinese domestic legislation. Chinese legislative authorities have enacted and revised the Law on the Protection of Cultural Relics in a timely manner, so that it is adapted to new circumstances and new situations. However, they still need to extend the economic and criminal penalties to effectively fight against illegally excavating or robbing ancient cultural sites or ancient tombs. At the same time, it is necessary to establish a possible appraisal as well as a reward mechanism and demarcate and coordinate the duties of law enforcement departments at different levels regarding Chinese archaeological objects.

Second, although the current international instruments and relevant national laws are unable to provide a solid legal basis for the repatriation of illicitly exported and looted archaeological objects in the event of armed conflict, the Chinese government, on the one hand, should pay more heed to the adoption of certain customary and international ethical principles concerning the return of archaeological objects. On the other hand, China should take active steps to promote intergovernmental cooperation, build a multi-level intergovernmental macro policy exchange and communication mechanism, expand shared interests, enhance mutual cultural trust, and reach a new consensus on cooperation with other market countries on the return of archaeological objects, under the guidelines and the basic principles of China’s foreign policies. The repatriation of archaeological objects should be treated as an important part of China’s diplomatic strategy, and an end should be put to the passive state of recovering Chinese archaeological objects. From a long-term perspective, the majority of market nations will have to face this issue and hold friendly talks with the Chinese government, under pressure from public opinion and ethical principles in the international community. In regard to the repatriation of Chinese archaeological objects, China will profit greatly from negotiations through diplomatic channels.

Third, as one of the main functional departments in China, the SACH, together with the Ministry of Culture, should conduct a wide-reaching investigation into, and research on, all stolen archaeological objects in order to track down all information about auction houses and any archaeological objects that have been illegally traded.

Fourth, China should construct diversified mechanisms for recovering archaeological objects, according to the realistic conditions. At the same time, China and other market nations should be encouraged to join bilateral agreements or memoranda of understanding on the protection of cultural property from theft, illegal excavation, and illicit traffic. ^{Footnote 82} In addition, law enforcement authorities in China and in other market nations should take all necessary measures to prevent the export of archaeological objects derived from illicit excavations and be encouraged to prohibit the entrance into their territory of archaeological objects that are not accompanied by an export certificate or the authorization issued by the competent authority of the original nation.

Fifth, the Chinese government should learn from the successful experiences of foreign countries in order to reinforce and perfect the protection of Chinese archaeological objects. As mentioned above, foreign national museums have already set a good example for China. State-owned museums, libraries, and other state-owned institutions for the collection of cultural objects should also allocate identification cards for each cultural object. The SACH should also establish and use databases and other mechanisms that have been established to share information internationally about stolen cultural objects – in particular, the Interpol’s Stolen Works of Art Database.

Sixth, in terms of recovering Chinese archaeological objects, it involves not only the relationship between different countries but also Chinese national feelings. Non-governmental groups and civil sources have played an important role in recovering archaeological objects from the market countries. It is vital that the Chinese government establish an effective interaction with non-governmental groups. The Chinese government and non-governmental groups also should form a forceful coalition to recover stolen archaeological objects.

Finally, intellectual resources are the most precious resources of China. The Chinese government often does not see the importance of, or are not good at summing up the experience of, recovering lost cultural objects from other market countries. Therefore, the crucial thing is to review what has been done and to promptly correct every false step. The SACH should organize academic researchers and scholars to compile a compendium of official documents and cases on the return of cultural objects (mainly focusing on the United Kingdom, the United States, and European Union countries). In fact, the theory of international cultural heritage law is based on practice and, in turn, serves practice. Chinese academics, especially those in the field of international law, should give greater attention to researching the repatriation of archaeological objects and other market nations’ domestic laws (civil law, museum law, and cultural property law), which will provide powerful support for the Chinese government’s policymaking.

What Can the International Community Do?

Although the Chinese government has made efforts to prevent the illicit traffic of cultural property and recovered stolen archaeological objects for the past three decades, there is still quite a long way to go. In order to conform to international rules as soon as possible, the Chinese government has always taken an active part in the formulation of international institutions and has signed certain international conventions to restrict the illegal flow of cultural property as well as to fight against the crime of theft or illegally excavating and stealing archaeological objects, which protects Chinese national interests and strengthens the process of international relations.

I suggest, first, that current international conventions are, needless to say, instrumental in enhancing the protection of source nations’ cultural heritage. ^{Footnote 83} If other countries (particularly market nations) have not already become members of the 1970 UNESCO Convention and the 1995 UNIDROIT Convention, they should be encouraged to join these international conventions. ^{Footnote 84} It is crucial that the majority of market nations be encouraged to ratify the 1995 UNIDROIT Convention.

Second, source nations and market nations are encouraged to join bilateral agreements or memoranda of understanding on the protection of cultural property from theft, illegal excavation, and illicit traffic under the restriction of current international conventions. ^{Footnote 85} For example, following a request by the Chinese authorities under the 1970 UNESCO Convention, China and the United States entered into a bilateral agreement on 13 January 2009, imposing import restrictions on certain archaeological material from China under Article IV. The agreement shall remain in force for a period of five years, which can be extended. On 17 January 2014, these two governments agreed that the agreement shall be extended for an additional five years (as of 17 January 2014, the US Department of State was listed on its website). The significance of this agreement cannot be overstated insofar as the United States is believed to be the destination of approximately half of all Chinese cultural objects sold worldwide.

Third, market nations could take the necessary measures to avoid acquiring archaeological objects suspected of having originated from clandestine excavations or of coming unlawfully from official excavations.

Last but not least, considering the retroactive effect of current international conventions, market nations are encouraged to legislate to allow claims to cultural property that would ordinarily be outside the limitation period prescribed by their domestic laws.