PREVENTING PILLAGE AND PROMOTING POLITICS:

THE DUAL GOALS OF THE 2009 U.S.-CHINA BILATERAL AGREEMENT TO

RESTRICT IMPORTS OF CHINESE CULTURAL PROPERTY
Rhonda Schechter
I. Introduction
The world-wide popularity [of] and high prices for Chinese archaeological artifacts have
encouraged illegal excavation and smuggling of cultural property,1 depriving China of its
cultural heritage and the world at large of opportunities to learn about the past.2 In response to
this problem, the United States and the Peoples Republic of China entered into a bilateral
agreement on January 14, 2009 that is designed to reduce the incentive for pillage of
irreplaceable archaeological material representing the rich cultural heritage of China. 3
The agreement stipulated that the United States would implement import restrictions on
specified categories of archaeological material originating in China and, in return, China would
increase its efforts to prevent the pillage of such material and its entry into illegal markets.4
Pursuant to that agreement, the U.S. issued a new federal rule on January 16, 2009 placing
import restrictions on certain archaeological materials representing Chinas cultural heritage
from the Paleolithic Period through the end of the Tang Period (A.D. 907) and monumental wall

U.S. State Department Bureau of Education and Cultural Affairs, PUBLIC SUMMARY REQUEST OF THE PEOPLES
REPUBLIC OF CHINA TO THE GOVERNMENT OF THE UNITED STATES OF AMERICA UNDER ARTICLE 9 OF THE 1970
UNESCO CONVENTION, para. 33 (2004), http://culturalheritage.state.gov/cn04sum.html., attached as Appendix A
[hereinafter P.R.C. REQUEST]. See also, e.g., Mo Honge, Tomb Robbers Hit 1/3 of Archaeological Sites, XINHUA,
May 15, 2006, http://news.xinhuanet.com/english/2006-05/11/content_4535158.htm (Archaeologists report a third
of Chinas 400,000-plus archaeological sties have been hit by thieves and that half of the countrys top-ten ancient
discoveries in 2005 had been at least partially looted.).
2
See, e.g., U.S. State Department Bureau of Education and Cultural Affairs, The Problem of Pillage: From the
Senate Report No. 97-564 on Implementing Legislation for the Convention on the Means of Prohibiting and
preventing the Illicit Import, Export, and Transfer of Cultural Property (October 19, 2001),
http://culturalheritage.state.gov/problem.html.
3
MEMORANDUM OF UNDERSTANDING BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICAN AND THE
GOVERNMENT OF THE PEOPLES REPUBLIC OF CHINA 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,
http://culturalheritage.state.gov/cn04sum.html, attached as Appendix B, [hereinafter U.S.-CHINA MOU].
4
Id.

art at least 250 years old.5 In a part of the rule that offers a rationale for its implementation, the
U.S. explains that its aim is to deter the pillage of items that are part of Chinas cultural legacy.6
The same section of the rule also suggests that the U.S. seeks to prevent a trade in Chinese
artifacts that could strain U.S.-China relations.7 This paper considers the extent to which the
U.S.-China bilateral agreement will serve its explicit and implicit goals, namely preventing the
pillage of Chinese cultural property and promoting the political relationship between the U.S.
and China.
Part II provides background information on the agreement: how it came to be, what it
says, and the basis for arguing that the U.S. entered into it in furtherance of two goals. Part III
discusses the likelihood that the agreement will achieve its explicit goal of preserving Chinas
cultural property, while Part IV discusses the likelihood that the agreement will achieve its
implicit goal of promoting U.S.-China relations. Part V concludes that while the agreement may
advance each of the U.S.s dual goals to some degree, it leaves both goals exposed to significant
risks; indeed, the single-minded pursuit of either goal may place the other goal at risk.

II.

An Overview of the Bilateral Agreement Its Formation, Contents, and Goals

The U.S.-China bilateral agreement resulted from an official request for the

implementation of import restrictions that was submitted to the United States government on
behalf of the government of the Peoples Republic of China by the latters State Administration
of Cultural Heritage.8 The request, submitted in May 2004, did not result in an agreement for
well over four years, and the agreement that did result provided for restrictions on a range of
5

Import Restrictions Imposed on Certain Archaeological Material from China, 74 Fed. Reg. 2,838 (Jan. 16, 2009)
(to be codified at 19 C.F.R. pt. 12) [hereinafter Import Restrictions].
6
U.S.-CHINA MOU, supra note 3.
7
Import Restrictions, supra note 5.
8
P.R.C. REQUEST, supra note 1.

artifacts significantly narrower than that requested by China.9 To understand the goals of the
U.S. in achieving an agreement and shaping the content of the final agreement, it is helpful to
understand the historical and legal context within which the agreement was formed.
A. The Historical and Legal Context of the Agreements Formation
Chinas request to the U.S. was made under the 1970 UNESCO Convention on the
Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of
Cultural Property (the Convention).10 Each state party to the Convention agreed to oppose the
illicit trade in cultural property because such trade results in the impoverishment of the cultural
heritage of the countries of origin of such property.11 Article 9 of the Convention allows a state
party confronted with the pillage of its cultural property to request the assistance of other state
parties, and the Article suggests controls on imports and exports as a specific remedy.12
China became a party to the Convention in 1989.13 As for the United States, the
Convention was ratified by Congress in1972 but, because the Convention did not have a basis
in U.S. law, special legislation was required to allow the U.S. to implement it.14 This enabling

Compare P.R.C. REQUEST, supra note 1, (seeking import restrictions on categories of pillaged archaeological
material from the Paleolithic Period to Qing Dynasty) with U.S.-CHINA MOU, supra note 3, Art. I (granting
restrictions on archaeological material from the Paleolithic Period through the end of the Tang Dynasty). See
also CultureGrrl Blog: Lee Rosenbaums cultural commentary, New China-U.S. Antiquities Agreement: Some
Concessions to U.S. Museums and Dealers, http://www.artsjournal.com/culturegrrl/2009/01/new_chinaus_antiquities_agree.html [hereinafter New China-U.S. Antiquities Agreement].
10
THE UNESCO CONVENTION ON THE MEANS OF PROHIBITING AND PREVENTING THE ILLICIT IMPORT, EXPORT, AND
TRANSFER OF OWNERSHIP OF CULTURAL PROPERTY [hereinafter 1970 UNESCO CONVENTION], Nov. 15, 1970, 823
U.N.T.S. 231.
11
Id., Art. 2.
12
Id., Art. 9.
13
UNESCO.org, Convention on Cultural Property,
http://portal.unesco.org/la/convention.asp?KO=13039&language=E&order=alpha (listing the date and the means by
which each state party to the Convention became a signatory).
14
U.S. State Department Bureau of Education and Cultural Affairs, Background: The 1970 UNESCO Convention
and Its Implementation by the United States (June 13, 2008), at http://culturalheritage.state.gov/backgrnd.html.

legislation, the Convention on Cultural Property Implementation Act (CPIA) was passed by
Congress in 1982 and signed into law by President Reagan in January 1983.15
Under the CPIA, if a state party to the Convention submits a formal request to the U.S.
for assistance, the President may enter into an agreement to impose import restrictions on that
partys archaeological or ethnological material for a period of up to five years,16 with the
possibility of renewal for additional periods of up to five years each.17 The CPIA also specified,
however, that the President has the authority to enter into such an agreement only if the President
has first made the following four determinations: 1) that the cultural patrimony of the State
Party is in jeopardy from the pillage of archaeological or ethnological materials of the State
Party; 2) that the State Party has taken measures consistent with the Convention to protect its
cultural patrimony; 3) that import restrictions, if applied in concert with the restrictions of
other nations, would substantially help deter pillage, and no less drastic remedies are available;
and 4) that import restrictions would be consistent with the general interest of the international
community in the interchange of cultural property among nations.18 The Presidents authority
to make these determinations was delegated to the State Department via an executive order.19
The State Department, in turn, relies on the recommendation of the Cultural Property Advisory

15

Id. The CPIA is codified at 19 U.S.C. 2601-2613 (1983).

19 U.S.C. 2602(b).
17
19 U.S.C. 2602(e).
18
19 U.S.C. 2602(a)(1)(A-D). The President may also enter into an agreement to impose import restrictions in
response to a request from a State Party regarding an emergency condition. 19 U.S.C. 2603(b). An emergency
condition may exist with respect to cultural property that is: 1) a newly discovered type of material which is of
importance for the understanding of the history of mankind and is in jeopardy from pillage or other destruction, 2)
from a site recognized to be of high cultural significance if such site is in jeopardy, or 3) a part of the remains of
a particular culture or civilization which faces destruction of crisis proportions. 19 U.S.C. 2603(a). Such
emergency restrictions may not be applied for more than five years, with the possibility of extension for three years.
19 U.S.C. 2603(c)(3).
19
Executive Order No. 12555, Mar. 10, 1986, 51 F.R. 8475, as amended. Ex. Ord. No. 13286, Sec. 44, Feb. 28,
2003, 68 F.R. 10627.
16

Committee (CPAC), an eleven-member committee of cultural property experts that advises the
President on the application of the CPIA.20
Some commentators have argued that CPAC could not recommend in good faith that the
U.S. enter into a bilateral agreement with China because the committee could not properly
conclude that that all four requirements of the CPIA were satisfied with regard to China.21 In
particular, critics of an agreement with China contend that China has not taken measures
consistent with the Convention to protect its cultural patrimony because it has failed to devote
sufficient resources to preventing pillage and to shutting down the illegal markets for pillaged
goods within China.22 Furthermore, critics argue that the Chinese government has pursued
construction projects, such as the Three Gorges Dam and the modernization of Beijing (both
discussed further below), with little regard for the effect of such projects on antiquities that lie
buried beneath a construction area or are torn down to make way for new structures.23
Apparently, CPAC determined that Chinas request met all of the requirements for a
bilateral agreement under the Convention.24 However, both CPACs deliberations and its
resulting recommendation to the President remain secret because CPAC is exempt from the
portions of the Federal Advisory Committee Act that requires open meetings and public
20

U.S. State Department Bureau of Education and Cultural Affairs, The Presidents Cultural Property Advisory
Committee (Oct. 5, 2008), at http://culturalheritage.state.gov/committee.html. CPAC is established by 19 U.S.C.
2605.
21
See, e.g., Bernard Isaac Weinstein Baskin, Historical Heist: An Economic Argument Against Embargoing Chinese
Cultural Property, 8 WASH. U. GLOBAL STUD. L. REV. 107, 114-20 (2009).
22
Id.
23
Id. (contending that China has violated the spirit, if not the letter, of the Convention by failing to provide
sufficient funding for local prevention of pillage, by neglecting to enact sufficient statutory protections for cultural
property, and by exhibiting apathy towards the destruction of countless antiquities during construction projects
such as the Three Gorges Dam). See also Randy Kennedy, Pact on Chinese Treasures Wins Praise, N.Y. TIMES,
Jan 17, 2009, at C1 ([M]any antiquities dealers and museum officials contended that China had not done enough
by itself to protect its cultural patrimony a crucial requirement under [the CPIA]).
24
The final rule imposing import restrictions states that the Assistant Secretary for Educational and Cultural
Affairs, Department of State, made the determinations required under the [CPIA] statute, Import Restrictions,
supra note 5, and it seems likely that the State Departments determinations were based on the findings of CPAC.
Indeed, the State Department announced that the bilateral agreement is consistent with CPAC's recommendation,
New China-U.S. Antiquities Agreement, supra note 9.

disclosure of documents.25 As a result, it is impossible to know with certainty precisely what

considerations led to the decision by the U.S. to enter the bilateral agreement with China and
what factors influenced the contents of the agreement.26 Nevertheless, it is possible to make two
fundamental assumptions based on the issuance of the final agreement. First, it is apparent from
the fact that an agreement was reached that the U.S. government found it generally advisable to
enter into an agreement with China. At the same time, a comparison of the contents of the
agreement with the language of Chinas original request for assistance reveals that the U.S. did
not find it advisable to reach an agreement without exacting some concessions from China,
described below.27
B. The Contents of the Agreement
A comparison of the text of the bilateral agreement with that of Chinas official request
for assistance reveals that China had to make at least two major concessions to the United States
in order to obtain the agreement. The first concession is that the agreement places U.S. import
restrictions on a narrower range of artifacts than that requested by China.28 The second
concession is that, in exchange for those import restrictions, the United States exacted promises
25

19 U.S.C. 2605(h). The provisions of the Federal Advisory Committee Act (Public Law 92-463; 5 U.S.C.A.
Appendix I) shall apply to the Committee except that the requirements of subsections (a) and (b) of section 10 and
section 11 of such Act (relating to open meetings, public notice, public participation, and public availability of
documents) shall not apply to the Committee, whenever and to the extent it is determined by the President or his
designee that the disclosure of matters involved in the Committee's proceedings would compromise the
Government's negotiating objectives or bargaining positions on the negotiations of any agreement authorized by this
chapter. Id.
26
See CultureGrrl Blog: Lee Rosenbaums cultural commentary, Why Does the State Department Favor Import
Restrictions on Cultural Property? Why Is CPAC's China Recommendation Still Secret?
http://www.artsjournal.com/culturegrrl/2007/04/why_does_the_state_department.html [hereinafter Why Does the
State Department Favor Import Restrictions?]. See also Jeremy Kahn, Is the U.S. Protecting Foreign Artifacts?
Dont Ask., N.Y. TIMES, Apr. 8, 2007,
http://query.nytimes.com/gst/fullpage.html?res=9B00E0D81F30F93BA35757C0A9619C8B63&sec=&spon=&page
wanted=3.
27
See, e.g., New China-U.S. Antiquities Agreement, supra note 9.
28
Compare P.R.C. REQUEST, supra note 1, (seeking import restrictions on categories of pillaged archaeological
material from the Paleolithic Period to Qing Dynasty) with U.S.-CHINA MOU, supra note 3, Art. I (granting
restrictions on archaeological material from the Paleolithic Period through the end of the Tang Dynasty). See
also New China-U.S. Antiquities Agreement, supra note 9.

from China that it would take steps to improve internal protection of its cultural heritage.29
Commentators on the process have suggested that a struggle over these concessions was the
reason that more than four years elapsed between Chinas request to the U.S. for assistance and
the issuance of a bilateral agreement.30 The State Department has usually been quick to grant
source countries' requests and had never previously turned one down,31 but in this case there
was a significant delay in granting Chinas request, presumably because an acceptable deal was
reached only after lengthy negotiations.
1. The Range of Items Covered by U.S. Import Restrictions
The request submitted to the U.S. by China sought import restrictions on pillaged
archaeological material dating from the Paleolithic period all the way through the end of the
Qing Dynasty in 1911.32 Some U.S. museum officials and art dealers objected to granting
Chinas proposal because it would mean that U.S. import restrictions would be placed on items
that had been created in large quantities in China specifically for distribution on a wide market.33
In apparent response to those objections, the final agreement between the parties placed U.S.

29

Compare P.R.C. REQUEST, supra note 1, (which does not include any offer to improve Chinese protection of its
cultural property) with U.S.-CHINA MOU, supra note 3, Art. II (in which China agrees to undertake certain efforts to
improve the protection of its cultural property). The agreement also includes promises by China to further cultural
interchange with the U.S., U.S.-CHINA MOU, supra note 3, Art. II. para. 7, but these promises arguably should be
viewed as a requirement the U.S. would impose on any party to a bilateral agreement under the CPIA rather than as
a concession that the U.S. exacted from China due to concerns over the specific nature of Chinas request. This is
because the CPIA states that the President should endeavor to obtain the commitment of the State Party concerned
to permit the exchange of its archaeological and ethnological materials under circumstances in which such exchange
does not jeopardize its cultural patrimony. 19 U.S.C. 2602(4).
30
New China-U.S. Antiquities Agreement, supra note 9.
31
Id.
32
P.R.C. REQUEST, supra note 1.
33
New China-U.S. Antiquities Agreement, supra note 9 (James Cuno, director of the Art Institute of Chicago, in
testifying before CPAC almost four years ago, had complained that the broad range of cultural property subject to
restriction under China's request would have included material...often made for the market and...circulated in the
trade since the Han Dynasty, more than 2000 years ago.) See also Kahn, Is the U.S. Protecting Foreign Artifacts?
Dont Ask., supra note 26 (noting that some collectors and dealers argue that Chinas petition is so broad that it
would include 19th-century ceramics that were mass-produced for export). In fact, it seems that even if the U.S.
had wished to implement the full range of import restrictions requested by China, it could not properly have done so
under the CPIA because the CPIA states that no object may be considered to be an object of archaeological interest
unless such objectis at least two hundred and fifty years old. 19 U.S.C. 2601(2)(ii)(II).

import restrictions on archaeological items dating from the Paleolithic (which the agreement
defines as beginning in approximately 75,000 B.C.) through the end of the Tang Dynasty in 907
A.D., as well as on monumental sculpture and wall art at least 250 years old.34 Thus, contrary
to Chinas wishes, the U.S. declined to cover archaeological materials created over the course of
a one-thousand-year time span from 907 A.D. to 1911 A.D.
Nevertheless, the import restrictions still cover a very vast array of items. The agreement
includes, but is not limited to the items specified in an extensive list of designated materials.35
The list is organized into categories first by type of material, then by usage, and finally by time
period.36 The primary categories of material are: 1) ceramics; 2) stone; 3) metal; 4) bone, ivory,
horn, and shell; 5) silks and textiles; 6) lacquer and wood; 7) bamboo and paper; 8) glass; and 9)
painting and calligraphy.37 Two of these categories are subdivided into more specific varieties of
material: stone is subdivided into jade, amber, and other stone; metal is subdivided into bronze,
iron, and gold or silver.38 Each material-based category is then further divided into categories
based on usage.39 For example, bronze items are divided into vessels, sculpture, coins, musical
instruments, tools and weapons, and miscellaneous.40 Finally, each of these sub-divisions is
divided into time periods based on Chinese dynastic eras.41
Even the narrowest sub-category, created by this final division into time periods, may
contain a wide variety of items. For instance, the items included within the sub-category of
ceramic sculpture dating from the Eastern Zhou, Qin and Han dynasties (which in this case are
treated as a single time period) may be life-sized or smaller; they may be hand-made or mold34

U.S.-CHINA MOU, supra note 3.

Import Restrictions, supra note 5.
36
Id.
37
Id.
38
Id.
39
Id.
40
Import Restrictions, supra note 5.
41
Id.
35

made; they may be unpainted, painted, or glazed; they may depict humans such as warriors,
servants, or acrobats or objects such as buildings, ships, and pig pens.42 Items classified as
restricted ceramic sculpture from the preceding time period even include ceramic models and
molds used in the process of casting bronze sculptures.43
In sum, the list of restricted items is so extensive that it seems reasonable to conclude that
it will be difficult for U.S. customs officials to become familiar with the many types of objects
that are subject to the restrictions and to distinguish them from those that are not.44 The fact
remains, however, that the import restrictions are less extensive than they would have been if the
U.S. had agreed to the terms of Chinas initial request.
2. Chinas Promises to Improve Its Protection of Cultural Property
Another way in which the U.S.-China bilateral agreement differs from Chinas initial
request for assistance is that the agreement includes promises by China to expand governmental
efforts to protect the countrys cultural property.45 These promises are couched in language that
is best described as aspirational. That is to say, the agreement employs phrases such as the
Peoples Republic of China shall expand efforts, shall use its best efforts, shall take
42

Id.
Id.
44
See, e.g., Kennedy, supra note 23 (stating that James Lally, a prominent New York dealer in Asian art argued
that the restrictions would be ineffective because they must be interpreted and applied by customs officials at the
Department of Homeland Security with other priorities and little experience with things like Sui-era pottery or
Shandong Longshan body ornaments). On the other hand, one might argue that U.S. customs officials have
effectively enforced import restrictions imposed pursuant to previous bilateral agreements the U.S. has reached with
state parties to the 1970 Convention, so there is no reason why they should not be able to implement the restrictions
on Chinese cultural property. For example, Clemency Coggins, one of the earliest proponents of such restrictions,
Clemency Chase Coggins, United States Cultural Property Legislation: Observations of a Combatant, 7 INTL J. OF
CULTURAL PROP. 52, 52-3 (1998), notes that the first set of restrictions implemented by the U.S. under the
Convention, a restriction on pre-Columbian art from the Cara Sucia region in El Salvador, effectively served[d] to
stabilize and protect that region archaeologically, id. at 58-9. However, the import restrictions implemented under
the bilateral agreement with El Salvador was much more limited than the restrictions implemented under the
agreement with China: the former applied only to ceramics and to stone sculptures and only to object from the Cara
Sucia region, Import Restrictions on Archaeological Material From El Salvador, 52 Fed. Reg. 34614 (Sept. 11,
1986), whereas the latter applies to ceramics and many other types of materials as well, and it applies to property
originating anywhere within the vast territory of China, Import Restrictions, supra note 5.
45
U.S.-CHINA MOU, supra note 3, Art. II.
43

measures or will explore ways to attain stated goals, but the agreement does not set any
standards by which Chinas efforts or the outcome of those efforts shall be judged.46
With such language, China undertakes to strive toward a number of enumerated goals,
which may be summarized as encompassing several broad aims. First, China agrees to raise
public awareness within the country of the importance of preserving cultural heritage (both
Chinas and that of other counties), including enhancing public appreciation of the role of
archaeological research.47 Another broad goal is to increase the resources, both monetary and
professional, that are devoted to the protection of cultural heritage throughout the country,48
and to commit those resources to appropriate techniques for protection.49 China also undertakes
to better regulate the trade in cultural property by several means: improving regulation of the
market for antiquities within China; preventing items from being transported illicitly from
Mainland China into the special administrative regions of Hong Kong and Macao; generally
improving the effectiveness of Chinas customs officers; and exploring ways to make more
Chinese antiquities available legally.50 China and the U.S. also agree to cooperate in protecting
Chinas cultural property in a variety of ways: 1) the U.S. promises to provide China with
technical assistance for projects such as improving rescue archaeology and strengthening market
regulation;51 2) China promises to further cultural interchange with the U.S.;52 3) China agrees
that its museums will not acquire objects that a U.S. museum would be prevented from acquiring
under the new U.S. import restrictions;53 and 4) the U.S. undertakes to provide China with

46

Id. at Art. II, para. 2-12.

Id., Art. II, para. 2-3.
48
Id. at Art. II, para. 4.
49
Id. at Art. II, para. 3. Two specific techniques to which China commits itself in the agreement are increased
archaeological research and the use of surface surveys in order to inventory sites. Id.
50
U.S.-CHINA MOU, supra note 3, Art. II, para. 5, 6, 9, 11.
51
Id. at Art. II, para. 8.
52
Id. at Art. II, para. 7.
53
Id. at Art. II, para. 10.
47

10

information that will reduce illicit trafficking in cultural property, while China commits to
regularly provide the Government of the United States with information concerning the
implementation of the [agreement].54 Finally, China agrees to work with other countries to
achieve restrictions on looted Chinese cultural property similar to those implemented by the
U.S.55
The various commitments China makes to improve protection of its cultural property are
considered to have been included in the agreement in response to those who opposed an
agreement on the grounds that China has not done enough to protect its own cultural heritage, as
required under the CPIA.56 The fact that the U.S. exacted these promises from China can be
viewed as more than merely an attempt to deflect criticism of the agreement, however. It likely
reflects a sincere attempt to ensure that the bilateral agreement will effectively protect Chinas
cultural property, which is, after all, the professed goal of the U.S. in entering into the agreement.
C. The U.S. Goals for the Agreement
The Memorandum of Understanding that memorializes the bilateral agreement opens by
stating that the government of the U.S. and the government of the Peoples Republic of China,
acting pursuant to the UNESCO Convention to which both countries are parties, and [d]esiring
to reduce the incentive for pillage of irreplaceable archaeological material representing the rich
cultural heritage of China; [h]ave agreed as follows57 Thus, the stated goal of the United
States in entering into the bilateral agreement is preventing pillage of Chinas valuable
archaeological material. This goal is expressed not only in the agreement with China but also in

54

Id. at Art. II, para. 13.

U.S.-CHINA MOU, supra note 3, Art. II, para. 12.
56
See, e.g., New China-U.S. Antiquities Agreement, supra note 9 (commenting that the agreement included
significant concessions to serious objections raised by U.S. museum officials and dealers).
57
U.S.-CHINA MOU, supra note 3.
55

11

the new U.S. import rule established pursuant to that agreement.58 The Background section of
the import rule begins by noting the immeasurable value of cultural property, commenting that
archaeological and ethnological items often constitute the very essence of a society and convey
important information concerning a peoples origin, history, and traditional setting.59 Due to
the value of these items, they are often subject to theft, looting, and illegal trade, such that the
United States has recognized a need to protect endangered cultural property.60 Indeed,
continues the commentary, it was the recognition of this need that led the U.S. to ratify the
UNESCO Convention and implement it via the CPIA.61
While the preservation of cultural property is the Unites States explicit goal in entering
the agreement, the Background section of the new import rule reveals that the U.S. likely
entered the agreement with another goal in mind as well. The section contains the following
admission:
The appearance in the United States of stolen or illegally exported artifacts from
other countries where there has been pillage has, on occasion, strained our foreign
and cultural relations. It became apparent that it was in the national interest for
the United States to join with other countries to control illegal trafficking of such
articles in international commerce.62
Based on this statement, it is fair to assume that in the specific case of the bilateral
agreement with China, the U.S. was motivated in part by a desire to avoid the potential strain on
U.S.-China relations that might result from U.S involvement in the trade of pillaged Chinese
artifacts. Indeed, it seems likely that the U.S. hoped that by entering into the bilateral agreement
with China it might not only avoid straining U.S.-China relations but might actually improve
58

Import Restrictions, supra note 5.

Id.
60
Id.
61
Id. The Background section of the rule explains that the U.S. implemented the 1970 UNESCO Treaty via the
CPIA in order to promote U.S. leadership in achieving greater international cooperation towards preserving cultural
treasures that are of importance to the nations from where [sic] they originate and contribute to greater international
understanding of our common heritage. Id.
62
Import Restrictions, supra note 5.
59

12

those relations. As some commentators have noted, making concessions to foreign

governments on matters of cultural patrimony is an easy way for the State Department to build
diplomatic goodwill.63
Thus, while the professed goal of the U.S. in entering into the bilateral agreement is
protecting Chinas cultural property, the U.S. was likely also motivated by the goal of promoting
U.S.-China relations. The question that remains to be answered is how well the agreement will
achieve each of these goals.

III. Will the Agreement Improve Protection of Chinas Cultural Property?

The extent to which the bilateral agreement will protect Chinas cultural property
depends on the effectiveness of two distinct yet interrelated elements of the agreement: first, the
import restrictions the U.S. placed on Chinese artifacts, and second, the efforts the Chinese
government has promised to undertake to improve protection of those artifacts before they ever
leave China.
A. Will the U.S. Import Restrictions Deter Pillage?
The import restrictions that the U.S. established pursuant to its agreement with China do
not absolutely prevent the importation of any artifact on the list of designated items but rather,
prevent the importation of any such item that was obtained illegally. Specifically, the U.S. rule
allows importation of an item on the designated list of restricted material only if one of the
following conditions is met: 1) the item was exported from China before the date the import
restrictions went into effect (January 16, 2009); or 2) the item is accompanied by documentation

63

Why Does the State Department Favor Import Restrictions?, supra note 26.

13

certifying that it was not exported from China in violation of Chinese law.64 This restriction
applies without regard to whether the imported item is coming directly from China.65
The theory behind placing such a restriction on Chinese artifacts is that by preventing
illegally acquired items from being sold to buyers in the U.S., individuals in China will not have
as great an incentive to loot artifacts because it will be more difficult for them to realize a profit
on those items.66 This theory rests on the assumption that the U.S. import restrictions will
decrease the market for pillaged Chinese artifacts to such an extent that those who loot
archaeological sites, or who might be tempted to do so, will feel the effect of the U.S.
restrictions.67 The validity of this assumption is questionable.
First, in order for the U.S. import restrictions to reduce the importation of looted Chinese
artifacts, they must be properly implemented by U.S. customs officials. As mentioned earlier,
the fact that the list of designated items is so extensive and varied suggests that it may be
difficult for U.S. customs officials to become familiar with the import restrictions in order to
implement them properly.68 The designated items vary widely both in terms of the type of item
including such disparate categories as coins, weapons, and calligraphy and in terms of the time
64

The rule states that importation of materials designated below are [sic] subject to the restrictions of 19 U.S.C.
2606, which is the section of the CPIA concerning import restrictions. Import Restrictions, supra note 5. The
pertinent language of the CPIA is as follows: No designated archaeological or ethnological material that is exported
(whether or not such exportation is to the United States) from the State Party after the designation of such material
under section 2604 of this title may be imported into the United States unless the State Party issues a certification or
other documentation which certifies that such exportation was not in violation of the laws of the State Party. 19
U.S.C. 2606(a).
65
19 U.S.C. 2606(a). The bilateral agreement provides that if an item on the designated list does not meet the
criteria for legal importation into the U.S. and is forfeited to the U.S. government, then the U.S. government shall
offer to return the item to the government of China. U.S.-CHINA MOU, supra note 3, Art. I, para. 2.
66
This theory underlies Chinas request to the U.S. for import restrictions. For instance, China noted in its request
that, [d]riven by high prices, many looted and smuggled artifacts appear for sale in the US market. P.R.C.
REQUEST, supra note 1, at para. 50.
67
See Kimberly DeGraaf, Should the U.S. Restrict Imports of Chinese Archaeological Materials? An Analysis
under the Convention on Cultural Property Implementation Act, 2 ART & MUSEUM L. J. 31, 42 (2007) (stating that
supporters of Chinas request [for import restrictions] argue that the most effective way to deter pillaging is to
sever the chain of supply and demand.)
68
See, e.g., Kennedy, supra note 23 (quoting that James Lally, an Asian art dealer, as stating that The publication
of such a new set of regulations will inevitably be poorly understood.).

14

period in which they originate spanning a period of approximately 76,000 years (from 75,000
B.C. to 907 A.D.).69 The bilateral agreement does state, however, that the Government of the
United States of America shall use its best efforts to improve the ability of its customs officers to
recognize Chinese archaeological material.70
Even assuming that U.S. customs officials do properly and uniformly apply the import
restrictions, there remains cause for fierce debate regarding whether the import restrictions will
actually deter the pillage of Chinese artifacts. Advocates of such restrictions, including many
from the archaeological community, have praised the policy and said they believed it would
help prevent the plundering of ancient material and sites.71 The director of the International
Center for East Asian Archaeology and Cultural History at Boston University commented, for
example, that the new import rule, though not a cure-all, is a very important step towards
reducing Chinese pillage, particularly if other countries follow suit.72 But other experts argue
that the rule will be ineffective in reducing pillage because illicitly-acquired Chinese artifacts
(and perhaps those of legitimate provenance as well) will simply be diverted to markets outside
the U.S.73 This concern was expressed, for instance, by Michael Conforti, the president of the
69

Import Restrictions, supra note 5

U.S.-CHINA MOU, supra note 3, Art. II, para. 5.
71
Kennedy, supra note 23. See also Benjamin Genocchio, Deal to Curb Looting in China Worries Museums, N.Y.
TIMES, Mar. 19, 2009, http://www.nytimes.com/2009/03/19/arts/artsspecial/19IMPORT.html (noting that [t]he deal
was widely hailed by archaeologists as an important step in deterring looting and illegal exports.)
72
Kennedy, supra note 23 (quoting the director, Robert E. Murowchick) This article also quotes Patty Gerstenblith,
president of the Lawyers committee for Cultural Heritage Preservation, as saying that We wish this would have
come earlier, but were very glad to have it finally happen. Id.
73
Some art dealers and museum professionals have complained that not only is the agreement unlikely to achieve
its stated goal of stopping looting in China, but also that it will harm legitimate collecting and study of this
material. Benjamin Genocchio, Deal to Curb Looting in China Worries Museums, supra note 71. Many U.S.
museums had already implemented policies against acquiring items that were exported from China after the 1970
UNESCO Convention unless those items have proper documentation. See, e.g., Association of Art Museum
Directors, New Report on Acquisition of Archaeological Materials and Ancient Art Issued by Association of Art
Museum Directors (June 4, 2008), http://aamd.org/newsroom/documents/2008ReportAndRelease.pdf (stating that
association members normally should not acquire a work unless research substantiates that the work was outside its
country of probable modern discovery before 1970 or was legally exported from its probable country of modern
discovery after 1970). Some experts, such as the director of the Nelson-Atkins Museum of Art (which has a
significant Chinese collection) worry that the import restrictions will actually prevent the importation of Chinese
70

15

Association of Art Museum Directors Although he praised the attempt to regulate the market
for Chinese artifacts, he worried that illegal exports would simply be diverted to other countries,
where the new restrictions were not in place.74
This is a very legitimate concern given that the United States is just one player on the
world-wide market for pillaged Chinese artifacts. Furthermore, there is no consensus that the
U.S. is any more than a minor player.75 While one advocate of restrictions identified the U.S. as
one of the largest markets for Chinese cultural artifacts, along with Britain, France, Japan, and
South Korea,76 it has been calculated that sales to the United States actually comprise a mere 4%
of world-wide sales in Chinese art, based on the dollar amount of those sales.77 The fact that the
U.S. constitutes only a fraction of the worldwide market for Chinese art means that the U.S.
import restrictions are unlikely to lead to a significant decrease in pillaging as long as pillaged
artifacts can be sold on other markets. For this reason, the effectiveness of the U.S. import
restrictions depends to some degree on the extent to which China complies with the promise it
made in the bilateral agreement to seek increased cooperation from other importing nations to
restrict the import of looted archaeological material originating in China.78
It will also depend, in part, on the extent to which China follows through on its promise
to improve regulation of its internal market for antiquities,79 given that a great deal of the

artifacts of legitimate, but undocumented, provenance. Benjamin Genocchio, Deal to Curb Looting in China
Worries Museums, supra note 71 (quoting the director, Mark F. Wilson as saying: This agreement is really a U.S.
embargo and is going to have a chilling effect on the environment in which legitimate collecting can take place.).
74
Gary Nurkin, Dealers, Museum Officials Question U.S.-China Antiquities Agreement, Art Info (Mar. 19, 2009),
http://www.artinfo.com/news/sotry/30879 (reporting on his conversation with Mr. Conforti).
75
DeGraaf, supra note 67, at 42 (noting that a critical question is whether the U.S. is a major market for these
smuggled artifacts).
76
Patty Gerstenblith, Statement to the Cultural Property Advisory Committee, available at
http://www.culturalheritagelaw.org/advocacy/u-s-and-china-sign-agreement-imposing-import-restrictions-onarchaeological-materials-from-china.
77
DeGraaf, supra note 67, at 42. The 4% figure is obtained when sales by Chinese auction houses are included in
total sales. Id.
78
U.S.-CHINA MOU, supra note 3, Art. II, para. 12.
79
Id. at Art. II, para. 11.

16

demand for Chinese art and artifacts both licit and illicit -- now comes from inside China.80
Some of the Chinese demand for artifacts comes from those attempting to buy back items that
were pillaged or stolen and taken out of the country.81 For example, Hong Kong casino tycoon
Stanley Ho reportedly paid $9 million to buy back from Taiwan a bronze horse head that was
one of twelve zodiac animals severed from a clock fountain by Anglo-French troops that looted
the emperors Summer Palace during the second Opium War.82 Mr. Ho brokered the purchase
through Sothebys and then donated the bronze to a state-run museum in Beijing that is filled
with repatriated artwork, including several of the other animal heads from the same fountain.83
Two more bronze heads from the fountain were auctioned off at a highly controversial Christies
sale in February, 2009 (discussed in greater detail in Section IV), garnering bids of
approximately $20 million apiece from a Chinese collector who advises a Chinese foundation to
repatriate stolen artifacts.84 While efforts to repatriate such artifacts is understandable (many
would even say admirable), paying princely sums for the artifacts seems to undermine the goal of
the U.S. import restrictions to eliminate the market for looted goods and thereby deter future
looting.85
80

DeGraaf, supra note 67, at 42-43 (noting, specifically, that [i]n 2005, the Chinese government reported $1.5
billion estimated sales of Chinese cultural material within China). See also Baskin, supra note 21, at 130-31.
81
See, e.g. Tim Johnson and Julie Sell, Countries Go To Greater Lengths to Get Looted Treasures Back,
MCCLATCHY NEWSPAPERS, Mar. 2, 2009, http://www.mcclatchydc.com/163/story/63106.html (In recent years, an
arms-trading branch of the Peoples Liberation Army and wealthy individuals have sought to buy back Chinas
antiquities abroad only to drive prices higher.).
82
Barbara Demick, Bronze Heads Gnaw at China, L.A. TIMES, Feb. 14, 2009, available at
http://www.latimes.com/news/nationworld/world/la-fg-zodiac24-2009feb24,0,936006.story.
83
Id.
84
Ben Blanchard, Chinese bidder wont pay for looted bronzes, REUTERS, Mar. 2, 2009,
http://www.reuters.com/article/artsNews/idUSTRE5210FM20090302?pageNumber=2&virtualBrandChannel=0.
The same collector has previously paid large sums to acquire looted art and bring it back to China, most famously
in 2006 when he paid $19-million at a Sothebys auction to purchase a rare bronze Buddha from the Ming dynasty
era. Mark MacKinnon, Bidder Butts Heads with Christies Over Looted Art, THE GLOBE AND MAIL, Mar. 3, 2009,
http://www.theglobeandmail.com/servlet/story/LAC.20090303.CHI. But there has been rising disapproval of such
sales, with many Chinese commentators comparing them to ransoms paid to kidnappers. Id.
85
Certainly, there is a distinction to be made between artifacts looted long ago by foreign troops and those that are
pillaged in modern times by poor Chinese farmers looking for a source of income, but according to the view of one
critic of U.S. import restrictions, all Chinese antiquities are part of a market in which the law of supply and demand

17

In addition to the growing numbers of Chinese buyers who seek to acquire Chinese
artifacts through legal means, China also has a significant black market for pillaged antiquities.86
In fact, some critics have argued that the Chinese legal regime for regulating the antiquities
market unintentionally spurs illicit trade.87 Chinese law includes a right of first refusal
provision which provides the government the opportunity to purchase any cultural item prior
to sale at a relic shop or auction house.88 Sellers may be driven to the black market by a fear
that if they try to offer an artifact on the legal market the government will demand to buy it at a
price lower than fair market value.89 Even if sellers are not driven to the black market, the act of
pillaging itself may be encouraged by the fact that the Chinese government sometimes buys
items that were pillaged.90 Although the government does so in order to prevent important
antiquities from being sold abroad and thereby lost to the Chinese people, it is arguably
stimulating the market for pillaged goods.91
As long as a market for pillaged Chinese artifacts continues to thrive within China, U.S.
import restrictions will have a negligible effect on the demand for those artifacts and thus a

rules: restrictions will simply drive up prices for antiquities in general and high prices drive looting. Baskin, supra
note 21, at 120-29. He argues that broad import restrictions increase the value of Chinese antiquities because the
restrictions create the perception that the supply of antiquities is diminished, and any commodity increases in value
when it is perceived to be in short supply. Id. at 122-24, 129. As the value of antiquities increases, more collectors
will be willing to acquire them by purchasing on the black market. See id. at 129. In addition, tomb raiders will
want greater compensation for the increased risk they take in obtaining the items and, at the same time, as the
compensation increases, more villagers will be willing to pillage archaeological sites. Id. at 124.
86
See, e.g., Baskin, supra note 21, at 131.
87
DeGraaf, supra note 67, at 49. The right of first refusal is contained in Article 58 of the 2002 Law on the
Protection of Cultural Relics. Id.
88
Id.
89
Id.
90
Martin Bailey, Bronze at British Museum May Be Loot, THE ART NEWSPAPER, Mar. 11, 2009,
http://www.theartnewspaper.com/article.asp?id=17085 (In China, major antiquities from illicit sources are
sometimes bought by the authorities for museums, to prevent them being smuggled abroad. However, there are
concerns that this encourages illicit digging.).
91
Id.

18

negligible effect on pillaging itself.92 Indeed, as long as a sufficient market for pillaged Chinese
goods remains somewhere in the world, Chinese looters of archaeological sites will not be
deterred by U.S. restrictions. Thus, the U.S. import restrictions alone cannot achieve the bilateral
agreements stated goal of reducing the incentive for pillage of Chinese archaeological material.
Substantial progress towards this goal requires that China makes significant strides in eliminating
the market for pillaged goods in countries other than the U.S., including China itself an
objective that the Chinese government promised in the bilateral agreement to undertake.93
B. Will Chinas Promises to Better Protect its Cultural Property Prove Effective?
Many of the promises the Chinese government made in the bilateral agreement are aimed
at improving the protection China provides for its own cultural property. As mentioned earlier,
however, each promise contained in the agreement is phrased in such a way that it does not
commit China to specific actions or measurable outcomes.94 Moreover, the agreement contains
the following provision: The obligation of both Governments and the activities carried out
under this Memorandum of Understanding shall be subject to the laws and regulations of each
country, as applicable, including the availability of funds.95 This caveat to the parties
obligations would seem to permit China to explain away its failure to deliver on any of its
promises by claiming either that it could not take certain actions because they are prohibited by
Chinese law, or that the government simply did not have adequate funds to undertake activities it
would have liked to pursue. 96 At the same time, however, the final promise China makes in the

92

See, e.g. Kennedy, supra note 23 (stating that many antiquities dealers and museum officials argued that Chinas
request was too broad and would be ineffective in reducing looting because of a thriving illicit market for such items
inside China itself).
93
U.S.-CHINA MOU, supra note 3, Art. II, para. 11-12.
94
See, generally, U.S.-CHINA MOU, supra note 3, Art. II.
95
Id. at Art. III.
96
A claim regarding the unavailability of funds might be well-founded given the current global economic crisis.
See, e.g., Wing Thye Woo, Chinas Short-term and Long-term Economic Goals and Prospects, BROOKINGS, Feb.
14, 2009, http://www.brookings.edu/testimony/2009/0217_chinas_economy_woo.aspx.

19

agreement is to regularly provide the Government of the United States with information
concerning the implementation of this Memorandum of Understanding.97 The United States
should ensure that it does receive such information from China, and it must then carefully
evaluate that information in order to determine whether the Chinese government is indeed
engaged in a good-faith effort to fulfill all of the promises it made in the agreement. If it
determines that China has not made a reasonable effort to fulfill its obligations, then the U.S.
should decline to renew the agreement when it expires at the end of five years.98
While the equivocal language of the bilateral agreement may thus be remedied to some
extent by the U.S. right to refuse renewal of the agreement, the terms of the agreement are also
problematic for failing to make any mention of two issues that are important to the protection of
cultural property throughout China. These issues the destruction of artifacts wrought by
unbridled development, and the treatment of the cultural heritage of Chinas minorities deserve
attention even though they are not directly implicated by the agreements focus on the problem
of pillage.
Chinas cultural heritage is threatened not only by pillaging but by construction projects,
often sponsored by the government, that destroy burial sites or tear down historical structures.99
One project in particular that has drawn a great deal of criticism is the construction of the Three
Gorges Dam, which is expected to submerge hundreds of archaeological sites.100 As one
opponent of a bilateral agreement with China phrased it, [t]his twenty-five billion dollar public
construction project is causing a scale of cultural property devastation that will dwarf the
97

Id. at Art. II, para. 13.

Id. at Art. IV.
99
See, e.g., DeGraaf, supra note 67, at 43 (stating that opponents argue that U.S. import restrictions wont solve the
problem of uncontrolled development as a major contributor to the loss of archaeological resources, and citing to
Dan L. Monroe, Statement to the Cultural Property Advisory Committee (Mar. 4, 2005), available at
http://www.aamds.org/advoacy).
100
Baskin, supra note 21, at 119. See also DeGraaf, supra note 67, at 40 (stating that development projects,
including the Three Gorges Dam, place in peril thousands of archaeological sites).
98

20

plundering of individual tomb raiders.101 Another major, though lesser-known project, the
South-to-North Water Diversion Project, will submerge 710 historical sites according to Chinas
own State Administration of Cultural Heritage, without allowing adequate time for
archaeologists to rescue all of the artifacts before the affected sites are flooded.102
In addition to the destruction of archaeological sites, construction projects have led to the
demolition of above-ground structures that constitute or contain cultural artifacts. In Beijing, for
example, traditional courtyard homes estimated to be 700 years old were torn down and replaced
with new structures in order to modernize the city before it hosted the Olympic Games in
2008.103 One article that appeared in The New York Times a few days after the bilateral
agreement was announced reports that, [i]n the years leading up the Beijing Olympics in
August, the destruction took on a manic pace. According to Unesco, more than 88 percent of the
citys old residential quarters are gone, including many government-designated heritage zones
whose protections existed only on paper.104 When asked about the destruction of these historic
districts, the Chinese Minister of Culture, Sun Jiazheng, admitted that some Chinese cities have
pursued modernization without any concern for the preservation of Chinas cultural heritage and
he apologized for not doing enough to protect that cultural heritage from rapid
modernization.105
The U.S.-China bilateral agreement does not do enough, either, to protect Chinas
cultural heritage from the threat of unbridled modernization. At best, the agreement might be
said to incorporate the need for such protection in its more general promises that China shall use
101

Baskin, supra note 21, at 119.

Wu Chong, Bone Collectors Race Against Time, CHINA DAILY, Oct. 12, 2006, at 42.
103
Pan Letian, Minister Apologizes for Not Doing Enough to Protect Cultural Heritage, CHINA VIEW, May 26,
2006, http://news.xinhuanet.com/english/2006-05/26/content_4605232.htm.
104
Andrew Jacobs, Finding Treasures in a Citys Disappearing Past, N.Y. TIMES, Jan. 19, 2009,
http://www.nytimes.com/2009/01/19/world/asia/19beijing.html.
105
Letian, supra note 103.
102

21

its best efforts to make use of surface surveys to inventory sites, and to broaden archaeological
research,106 and that China shall use its best efforts to increase funding and professional
resources for the protection of cultural heritage throughout the country.107 In order for China to
most effectively protect its cultural property, it should more directly address the threat posed to
that property by construction projects. China should strive to establish a specific, governmentsanctioned approach for salvaging property that would otherwise be destroyed by such projects.
The U.S., in turn, should consider whether China has taken any such steps when it considers
whether to renew the agreement at the expiration of its five-year term.
In addition, when considering whether to renew the agreement, the U.S. should consider
the extent to which the Chinese government has acted to protect the cultural heritage of all the
people within the nations borders, including ethnic minorities, because China has a
questionable record regarding the treatment of its own minority cultural communities, in
particular the Tibetans.108 Just as the bilateral agreement fails to address the threat to Chinas
cultural heritage posed by development projects, the agreement likewise makes no mention of
how China shall treat the cultural property of its many minority populations.109 The agreement
merely states that China shall strive to improve the resources devoted to the protection of
cultural heritage throughout the country [emphasis added];110 but the U.S. should interpret this
statement to mean that China must endeavor to protect the heritage of all the cultures found
within Chinas borders.

106

U.S.-CHINA MOU, supra note 3, Art. II, para. 3.

Id. at Art. II, para. 4.
108
DeGraaf, supra note 67, at 41.
109
One commentator, in evaluating whether Chinas request to the U.S. met the CPIA requirement that a requesting
state party to the Convention adequately protect its own cultural property noted that one issue relevant to this
determination is Chinas poor record concerning its minority populations. Id. at 11.
110
U.S.-CHINA MOU, supra note 3, Art. II, para. 4.
107

22

Requiring China to specifically commit in the bilateral agreement to protect the cultural
property of its minority communities would likely have interfered with the U.S.s implicit goal in
entering into the bilateral agreement -- preventing a strain on U.S.-China relations given that
the issue of Chinas treatment of its minorities is a perennially sensitive subject between the two
nations.111 In this sense, the U.S.s implicit goal for the agreement conflicts with its explicit goal
of protecting Chinas cultural property. However, if the U.S. wants to maximize the
effectiveness of the agreement in achieving its professed goal, then the U.S. must interpret
Chinas broad promise to increase the resources devoted to protecting cultural heritage
throughout the country as incorporating a commitment to protect the heritage of all of Chinas
peoples. In addition, the U.S. should interpret that promise as a commitment to increase the
resources devoted to protecting cultural heritage when threatened by development projects as
well as by pillaging. More fundamentally, the goal of better protection for Chinese cultural
property will only be achieved if the U.S. critically evaluates whether China has made goodfaith, reasonable efforts to fulfill all of the promises it made in the agreement, promises that were
offered in aspirational language rather than specific terms.

IV. Will the Agreement Improve U.S.-China Relations?

The bilateral agreements 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 protect Chinas
cultural property, the U.S. also acted with the implicit goal of promoting U.S.-China relations.112
In other words, at the same time that the U.S. extracted certain promises from China in exchange
for import restrictions, the U.S. may have determined that it was not worth antagonizing the
111

See, e.g., Liam Stack, Chinas Crackdown in Tibet Complicates US-Chinese Ties, THE CHRISTIAN SCIENCE
MONITOR, Mar. 11, 2009, http://www.csmonitor.com/2009/0311/p99s01-duts.html.
112
See Import Restrictions, supra note 5.

23

Chinese government in order to require that those promises to be offered in language that would
have committed China to specific actions and measurable outcomes. Similarly, the agreements
failure to address the issue of protection for the cultural heritage of Chinas minority populations
might be attributable, as suggested above, to the fact that the U.S. determined the issue posed too
great a risk of straining U.S.-China relations. If these terms of the agreement do indeed reflect
such calculated concessions on the part of the U.S. then, despite those concessions, and despite
the grant of U.S. import restrictions, the agreement can hardly be said to have eliminated the
potential for conflict. Specifically, two types of conflict over U.S. imports of Chinese cultural
property are foreseeable that would seriously strain U.S.-China relations.
A. Potential Conflict Over Artifacts from Taiwan
These first of these potential conflicts involves the issue of Taiwans status -- the degree
to which it is treated as part of China, an issue that is completely ignored by the bilateral
agreement.113 The second source of potential conflict arises from the more basic issue that the
U.S. import restrictions only cover items exported from China on or after January 16, 2009.114
Both of these potential conflicts are related to the two provisions for the legal U.S. importation of
restricted Chinese artifacts under the new import rule.
The new U.S. rule allows a Chinese artifact on the designated list of restricted material to
be imported if: 1) the artifact was exported from China before the date the import restrictions
went into effect, or 2) it is accompanied by documentation certifying that it was not exported
from China in violation of Chinese law.115 The potential conflict that could arise due to
Taiwans prickly status involves both of these provisions.

113

See Import Restrictions, supra note 5.

Id.
115
Id. (stating that 19 U.S.C. 2606(a) applies).
114

24

A large number of Chinese artworks and artifacts are located in Taiwan, most notably in
Taiwans National Palace Museum, after having been carried to Taiwan by Nationalists who fled
there from Mainland China when the Kuomintang were defeated by the Communists in 1949.116
The U.S. import rule indicates that Taiwan will be considered part of China for the purposes of
the rule: the rule directs those who seek a definition of China to refer to a State Department
website,117 and that website states that Taiwan is part of China.118 Because the U.S. considers
Taiwan to be part of China, any Chinese artwork or artifact located in Taiwan would be
considered to be located within the State Party to the Convention.119 Therefore, the U.S.
import rules first provision, permitting U.S. importation of items that were exported from China
prior to January 16, 2009,120 cannot be used to import items located in Taiwan on or after that
date.
As a result, any designated material located in Taiwan when the import restrictions went
into effect may now be legally imported into the United States only if accompanied by a
certification that it was not exported in violation of Chinese law. Certification by the
government of Taiwan would not suffice, however, because the Memorandum of Understanding
between the U.S. and China specifies that items on the designated list may not be exported from
China unless the Government of the Peoples Republic of China issues a license or other

116

See, e.g., Tania Branigan, Chinese Treasures to be Reunited in Taiwan, THE GUARDIAN, Feb. 20, 2008,
http://www.guardian.co.uk/world/2009/feb/20/chinese-imperial-treasures-taiwan; Keith Bradsher, Museum in China
Lends Art to Taiwan Counterpart, THE N.Y. TIMES, Feb. 16, 2009,
http://www.nytimes.com/2009/02/17/arts/design/17arts-MUSEUMINCHIN_BRF.html (stating that the Nationalists
took nearly a quarter of the Chinese imperial collection).
117
Import Restrictions, supra note 5 (see the last sentence prior to the Determinations section).
118
U.S. Department of State Bureau of Intelligence and Research, INDEPENDENT STATES IN THE WORLD FACT SHEET
(Aug. 19, 2008), available at http://www.state.gov/s/inr/rls/4250.htm#note3 (With the establishment of diplomatic
relations with China on January 1, 1979, the US Government recognized the People's Republic of China as the sole
legal government of China and acknowledged the Chinese position that there is only one China and that
Taiwan is part of China.)
119
19 U.S.C. 2606(a).
120
Id.

25

documentation which certifies that such exportation was not in violation of its laws.121 It is far
from certain that that the Chinese government will always be willing to grant such
documentation.122 Thus, the potential for conflict between the U.S. and China now exists
whenever an individual or institution in the United States wants to import an item on the
designated list from Taiwan, be it for purchase or for loan to a temporary exhibit. If China
should refuse to issue the required certification, the U.S. government will have to decide whether
to force the issue, and will likely be under pressure to do so from the individual or institution
seeking to import the item. On the other hand, the Chinese government might receive pressure
from interest groups within Mainland China to withhold the required certification. Because the
deliberations of the Cultural Property Advisory Committee are confidential,123 it is unclear
whether the U.S. government failed to foresee this potential conflict or, perhaps more likely, did
foresee it but chose not to address it in the bilateral agreement because merely raising the issue
could strain U.S.-China relations. However, if such a conflict does arise, then it will undermine
(at least to some degree) the U.S. goal of avoiding a strain on U.S.-China relations due to U.S.
importation of cultural property that China considers to be illicitly acquired.
B. Potential Conflict Over Artifacts Exported From China Prior to the U.S. Rule
That U.S. goal may also be undermined if a conflict arises over a piece of cultural
property that China considers illicitly acquired but which is not covered by the new U.S. import
rules because it was exported from China prior to January 16, 2009. The potential for such a
conflict is illustrated by a highly publicized and controversial auction that took place in France a
few weeks after the U.S. import rule was implemented. In late February of 2009, Christies

121

U.S.-CHINA MOU, supra note 3, Art. I, para. 1.

See Branigan, supra note 116, and Bradsher, supra note 116 (both noting that Taiwans National Palace Museum
will not lend any items in its collection to China for fear those items will not be returned).
123
19 U.S.C. 2605(h).
122

26

auctioned off much of the art collection in the estate of the fashion designer Yves Saint
Laurent.124 Included in the auction were two bronze animal heads, a rat and a rabbit, that were
among the twelve zodiac animals looted from the clock fountain at the Summer Palace by French
and British troops in 1860.125 When the Chinese government learned that these two bronzes
were to be part of the Yves Saint Laurent sale, it tried to persuade Christies not to auction them
off.126 When that failed, the Association for the Protection of Chinese Art in Europe sought to
enjoin the auction by filing a motion at the Tribunal de Grande Instance in Paris.127 A French
judge rejected the motion.128
Experts on cultural property law note that, although China certainly has a moral claim to
the bronzes since it is undisputed that they were looted, China has no legal claim to them because
there were no international laws against looting at the time and the laws that now exist cannot be
applied retroactively.129 China would have no greater legal claim to the bronzes if the high
bidder at the auction were a buyer who wanted to import them into the United States because the
bronzes were in France for decades and the new U.S. import restrictions apply only to items
exported from China on or after January 16, 2009. The potential for a strain on U.S.-China
124

See, e.g., Demick, supra note 82; MacKinnon, supra note 84.
See, e.g., MacKinnon, supra note 84. Five of the twelve heads had already been repatriated, while five others are
missing: it is not known whether they are secretly held in private collections or were simply destroyed. Id.
126
Sim Chi Yin, A Legal Case That Cant Be Won?, Mar. 1, 2009, at THE STRAITS TIMES BLOGS,
http://blogs.straitstimes.com; Auction of Looted Relics a Lesson to World , CHINA DAILY, Mar. 2, 2009,
http://chinadaily.com.cn/.
127
Auction of Looted Relics a Lesson to World, supra note 126. [T]he auction house insisted that the heads have
a clear chain of ownership and can be resold since they traded hands several times over the 20 th century. Demick,
supra note 82. In fact, Christies stated that it was supporting repatriation of cultural property by sourcing and
bringing works of art to the auction platform to give buyers a chance to bid for them. Id.
128
Demick, supra note 82.
129
See, e.g., MacKinnon, supra note 84 (Lucille A. Roussin, who has a Ph.D. in art history and archaeology as well
as a law degree and teaches at the Benjamin N. Cardozo School of Law in New York, said theres no dispute when
Chinese officials say the bronze rat and rabbit heads that were auctioned by Christies last week in Paris disappeared
in the ransacking of the emperors Garden of Perfect Brightness during the Second Opium War. Did they have a
legal claim? No. Did they have a moral claim? Yes, Roussin said. The items in question were certainly looted,
But there were looted at a time when there was no international law on this kind of looted object.); Sim Chi Yin,
supra note 126, (noting that local and foreign experts say China does not have a legal claim to the bronzes because
the three international conventions protecting looted cultural relics the earliest of which dates to 1954 cannot be
invoked or applied retroactively).
125

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relations if the winning bidder had been someone in the United States is evident from the strain
on Chinese-French relations that occurred as result of the auction.
At first, it was unclear who had made the winning bid for the bronzes, since the high
offer of approximately $20 million apiece was made by phone.130 A group of Chinese lawyers
vowed to find the bidder and tried to persuade him or her to return the bronzes to China.131 If
that didnt work, they said, they would pursue legal options.132 The Chinese government itself
took action, announcing just hours after the sale that it would impose tighter controls on items
that Christies seeks to bring in or out of China.133 The State Administration of Cultural Heritage
issued a statement on its website that Christies would be required to provide documentation of
the ownership and provenance of any artifacts that Christies wants to import into China or
export from China.134 This would not only make it harder for the London-based auction house to
acquire items from China for sale, but also to deliver them to a winning bidder in China.135
James Sung, a political science professor at City University in Hong Kong, said China had
overreacted and that the controversy surrounding the auction will hurt the China-France
relations.136
The potential for political damage only increased when the mysterious winning bidder
revealed himself to be a Chinese individual named Cai Mingchao who advises a Chinese
foundation that repatriates looted artifacts.137 He had previously paid high prices for looted
Chinese treasures, but he announced that this time he had no intention of paying for the

130

Sim Chi Yin, supra note 126.

Id.
132
Id.
133
Le-Min Lim and Stephanie Wong, China Slaps Controls on Christies After Bronzes Sale, BLOOMBERG, Feb. 26,
2009, http://www.bloomberg.com/apps/news?pid=20601080&sid=aVRJlc8zoqLk&refer=asia.
134
Id.
135
Id.
136
Id.
137
Blanchard, supra note 84.
131

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bronzes.138 He framed his refusal to pay as a patriotic act made on behalf of all Chinese
people.139 Commentators noted that the Christies auction had aggravated existing Chinese
public ire towards the French that was initiated when French President Nicolas Sarkozy met
with the Dalia Lama, the exiled leader of Tibetan Buddhists.140 The political strain mounted
when Pierre Berg, who had been the business partner and companion of Yves Saint Laurent,
offered to return the two bronzes to China for free if China would agree to give the Tibetans
back their freedom and agree to accept the Dalia Lama on their territory. If they do that, I would
be very happy to go myself and bring these two Chinese heads to put them in the Summer Palace
in Beijing.141
As of this writing, the extent of the political fallout from the auction is unclear, but the
situation exemplifies how the trade in illicitly-acquired artifacts can strain foreign relations. It
sheds light on the statement that appears in the new U.S. import rule that the U.S. government
was motivated, in part, to enact the rule because [t]he appearance in the United States of stolen
or illegally exported artifacts from other countries where there has been pillage has, on occasion,
strained our foreign and cultural relations.142 However, the Christies auction also makes it
clear that the new U.S. import rule certainly does not eliminate the potential for strain on U.S.China relations because the U.S. import restrictions would not apply to the bronze animal heads.
Any items that were exported from China before January 16, 2009 could be purchased at auction
by a U.S. buyer and legally imported even if those items had indisputably been pillaged or looted
from China. Moreover, a collector in the U.S. could legally auction off such pillaged or looted
artifacts and sell them to a buyer abroad. As a result, while the bilateral agreement between the
138

MacKinnon, supra note 84.

MacKinnon, supra note 84; Blanchard, supra note 84.
140
Blanchard, supra note 84.
141
MacKinnon, supra note 84.
142
Import Restrictions, supra note 5.
139

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U.S. and China may have created some goodwill between the two nations, it has only marginally
narrowed the range of situations that could create a future strain on U.S. China relations due to
the extensive trade in pillaged Chinese artifacts, both those recently unearthed and those looted
long ago. Thus, while the U.S. goal of promoting U.S.-China relations may have been served in
the short-term by the bilateral agreement, that goal remains at risk in the long-term.

V. Conclusion
The U.S. is certainly not assured of long-term success in promoting better relations with
China by agreeing to place import restrictions on many pillaged Chinese artifacts, but the
agreement may indeed create some goodwill, especially in the short term. Similarly, while the
agreement will not result in the elimination of all incentives to pillage Chinese artifacts, the
agreement does take a step toward deterring pillage, particularly because it states that the
Chinese government itself will strive to better protect its cultural property. In the end, the extent
to which the U.S. achieves each of its dual goals for the bilateral agreement may depend on the
extent to which it is willing to sacrifice the other goal. This is because the dual goals with which
the U.S. government entered into the agreement protecting Chinese cultural property and
promoting U.S.-China relations are diametrically opposed.
To most effectively protect Chinas cultural property, the U.S. government will have to
hold the Chinese government to its promise to regularly provide the U.S. with updates on its
efforts to fulfill the commitments it made in the bilateral agreement. The U.S. government
should not renew the agreement unless China provides solid evidence that it has made a goodfaith attempt to take the steps outlined in the agreement, steps which are designed to reduce the
worldwide market for pillaged Chinese antiquities and improve the protection of such antiquities
within China. If China does not provide satisfactory evidence of its efforts, then the U.S. risks

30

straining its relations with China by demanding such evidence and by refusing to renew the
agreement if the evidence is not forthcoming. But insisting that China fulfill its commitments to
better protect Chinese cultural property could imperil the implicit goal with which the U.S.
entered into the agreement, namely promoting U.S.-China relations. Similarly, this implicit goal
would be placed at risk if the U.S. pressures China to devote resources to the protection of the
cultural heritage of its minority populations or to provide protection for artifacts threatened by
modernization projects. But the U.S. may need to exert such pressure on China if it is fully
committed to protecting all of the cultural property in China. To some extent, then, the United
States will need to decide which one of its dual goals for the bilateral agreement will take
priority as it responds to each situation that arises as a result of this agreement. The U.S. can
likely achieve some degree of progress towards each of its goals, but it may, at times, have to
sacrifice one goal to serve the other.

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