Historical heist: an economic argument against embargoing Chinese cultural property.

• Date: 22 December 2009
• Published date: 22 December 2009
• Author: Baskin, Bernard Isaac Weinstein
• Author: Baskin, Bernard Isaac Weinstein

"Art is not a mirror held up to reality, but a hammer with which to shape it." (1)

--Vladimir Mayakovsky

1. INTRODUCTION

   In 2003, Time reported on a virulently rampant problem, touching both the silken aristocrat and the lowly peasant. A persistent threat to the memory of human civilization and yet the key to its everlasting sanctum. On a damp, portentous evening in 1997, in the center of a wheatfield, edging the crumbling villages near Luoyang in China's Henan province, a man named Feng made a decision that would have international reverberations. (2)

   Feng, then nineteen years old, became a tomb raider that night. After drinking sorghum spirits with a group of friends and fellow raiders, the group set out for a local wheatfield. The men quickly located what appeared to be an unmarked tomb by using a small generator to provide light in the late hour. After digging for a short while, stale air began emanating from the freshly uncovered tomb, leaving Feng nauseous yet determined to continue. At least one of the men standing nearby staggered away and promptly vomited from the stench. Feng stood over the exposed pit, staring down into the tomb's inky depths. Just as his nerves began to falter, Feng's uncle approached him, explaining that as the youngest of the group, Feng would have the honor of descending into the tomb on a solo reconnaissance mission--an initiation rite. (3)

   Feng descended deep into the cavernous sepulcher using only rope as a guide. Heavy air, paralyzed by time's stillness, blossomed through the descent. Upon reaching the floor, however, the fumes became overwhelming. Feng wallowed in the stench, gasping for air before finally fainting. Despite having to drag him out, the other raiders recovered five ceramic Tang Dynasty animals, each worth around ten thousand dollars to Western dealers. Despite his ignominious maiden raid, Feng was paid forty-five dollars as his share of the profit. He does not know why Westerners pay so handsomely for such a dingy piece of pottery, and does not care, so long as he is paid. (4)

2. CHINA'S MIGHTY REQUEST

   Feng's story is not unique. According to China's National Cultural Relics Bureau, approximately 220,000 ancient tombs in China were breached and looted between 1998 and 2003. (5) China has an epidemic on its hands, and under its soil.

   Thus, on May 27, 2004, the People's Republic of China formally requested that the U.S. Department of State restrict the importation of Chinese archaeological material from the Paleolithic period to the Qing Dynasty due to a concern that Chinese cultural heritage is under attack from pillage. (6) The request stirred tremendous debate in the U.S. art community. It sought to render illegal the importation of certain categories of metal implements; weapons; vessels; sculpture; jewelry; pottery and porcelain vessels; architectural elements; stone implements; lacquer, bone, ivory and horn wares; and wood and bamboo objects, among others. (7) Art dealers, museum curators, collectors, and art enthusiasts focused their attention on the State Department to see how it would manage the request. (8) These individuals were well aware that the United States had previously approved import restrictions with nations rich in antiquities, in an attempt to curb the export of illicit cultural property. However, China's request came amid a turbo-charged international market that was aggressively collecting Chinese cultural artifacts. (9)

   Procedurally, following an initial petition for U.S. import restrictions on cultural property, the Cultural Property Advisory Committee ("CPAC") is granted time to review the request. (10) The Committee's findings are then passed on to a decision-maker in the State Department. This person later confers with officials in the White House and Treasury Department and makes a final decision on the import restriction. (11)

   The CPAC held a public hearing on February 17, 2005, to debate the issue, (12) then discussed it again in closed session on March 31 and April 1 of the same year. (13) The Committee was to determine whether the Chinese request satisfied the four requirements of the U.S. legislation implementing the 1970 UNESCO Convention (the "Convention"), (14) appropriately named the Convention on Cultural Property Act ("CPIA"). (15) If it were determined that the Chinese request failed to satisfy these four requirements, the request would be denied. (16) If, conversely, the request were found to have satisfied the CPIA requirements, the United States would theoretically have little reason to stall the implementation of import restrictions. Thus, the heated public debate of February 17, 2005, centered on these four requirements.

   Under the CPIA, the President must make the following four determinations: (1) that the cultural patrimony of the other member state is in jeopardy from the pillage of archaeological or ethnological materials of the other member state; (2) that the other member state has taken measures consistent with the Convention to protect its own cultural heritage; (3) that any import restrictions would be of substantial benefit in deterring a serious situation of pillage, and that there are no alternative, less drastic remedies than an import restriction; and (4) that import restrictions are consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes. (17) In short, the President must determine that cultural property is in danger, that the other state took sufficient actions to protect its cultural property, that import restrictions would be beneficial and not overly restrictive, and finally that there exists a general international interest in restricting the importation of the antiquities in question.

   CPAC members were inundated with letters from both those in favor of and against import restrictions. Those opposing China's request observed that it included some categories that are not considered "archaeological" materials, are not over 250 years old, and are not normally found beneath the ground. (18) Furthermore, they insisted that no other market nations have implemented similar restrictions on the importation of Chinese antiquities, a necessary requirement of the CPIA. (19) The opposition also argued that China has not met its burden of satisfying the CPIA's "self-help" requirements. (20)

   Conversely, those in favor of import restrictions argued that China has a continually expanding legal regime to protect its cultural property, thus satisfying its obligations under the CPIA. (21) Supporters of these restrictions further argued that the five largest markets for Chinese cultural property have implemented domestic legislation automatically banning importation of restricted cultural materials from other states party to the Convention. (22) Even barring similar foreign legislation, they argued, the President nevertheless retains the power to implement import restrictions under an exception to the CPIA requirements. (23) Despite the rhetoric of these two groups and the escalating black market for Chinese cultural property, no State Department decision has been issued to date. (24)

   This Article will address China's request for U.S. support under the CPIA. Part III will assess the four distinct requirements under the CPIA and address China's failure to comply with three of the four. Part III.C is the heart of this argument. In it, an economic analysis will prove that a U.S. embargo on Chinese cultural property will not deter the ongoing pillage of China's cultural property. Structurally, this argument is designed to show that an embargo will likely increase this pillage. Let it be clear--this author is deeply concerned for the heritage of mankind and wishes in no way to deter the international community from focusing on solutions to this problem. Rather, it is hoped that this small contribution will meaningfully enlighten the ongoing discussion, such that other possible remedies will both be acknowledged and studied.

3. THE UNITED STATES SHOULD REJECT CHINA'S PROPOSED IMPORT RESTRICTION

   The United States should reject the proposed Chinese import restrictions because China has failed to meet its burden under the CPIA. Concededly, China's cultural patrimony is in jeopardy of pillage. However, despite the foreseeable and irreparable harm to China's cultural heritage, China has not taken adequate measures to protect her own cultural heritage under the Convention, and may even be said to have breached the spirit of the Convention. Furthermore, the proposed import restrictions will not be of substantial benefit in deterring the pillage of cultural property. Lastly, China's proposed import restrictions are overly broad, such that the proposal may be deemed inconsistent with the general interest of the international community in the interchange of cultural property for scientific, cultural, and educational purposes.

   1. China's Cultural Patrimony Is Under Threat

      To fully understand the current threat to Chinese cultural heritage, it is important first to understand a little about the international market in illicit cultural property. (25) In this market, nations are generally classified as either "source nations" or "market nations." The simplest way of distinguishing between a source nation and a market nation is this: if the supply of desirable cultural property exceeds the internal demand, the nation is considered a source nation. (26) If, however, the demand exceeds the supply, the nation is considered a market nation. (27) Mexico, Egypt, Greece, and India are examples of source nations, whereas the United States, France, and Germany are famous examples of market nations. (28) Inevitably, the demand for antiquities from market nations encourages illicit export from source nations. This trend is even more pronounced when the source nation is relatively poor and the market nation is relatively...