"it’s got great historical significance and ought to be returned.”

So says Patty Gerstenblith, quoted in today’s New York Times article detailing the efforts of China to prevent the sale of two bronzes taken during the burning of the imperial Summer Palace in 1860:

Liu Yang, a Beijing lawyer who is helping to organize the lawsuit threatened in France, said he had located a descendant of China’s royal family to serve as plaintiff in the case.


“The Old Summer Palace, which was plundered and burnt down by Anglo-French allied forces during the Second Opium War in 1860, is our nation’s unhealed scar, still bleeding and aching,” Mr. Lui said. “That Christie’s and Pierre Bergé would put them up for auction and refuse to return them to China deeply hurts our nation’s feelings.”


Mr. Liu also asserted that the sale would violate a 1995 United Nations convention governing the repatriation of stolen or illegally exported cultural relics.


But Patty Gerstenblith, a professor of law at DePaul University in Chicago who specializes in cultural-property issues, said that France never ratified the convention and that even if it had, the agreement does not apply retroactively to objects looted decades or centuries ago.


“My view is this was looted, but it would be difficult to get that legally back,” she said in a telephone interview on Monday. “But it’s got great historical significance and ought to be returned.”


Professor Gerstenblith suggested that one solution might be for the Yves Saint Laurent and Pierre Bergé Foundation to negotiate with China and offer it at a reasonable price. “It would probably be in the best interest of everybody if they made a deal privately with China,” she said.

Previous posts on this dispute here and here.  

Questions or Comments? Email me at derek.fincham@gmail.com

1 thought on “"it’s got great historical significance and ought to be returned.””

  1. That there are difficulties on the way to recovery of the stolen/looted artefacts cannot be denied but the non-retroactivity of the 1970 UNESCO Convention or the 1995 UNIDROIT Convention is no argument against pursuing the case for restitution. Non-retroactivity does not mean or imply approval. The real question here is whether this atrocious act of aggression and looting was ever approved by International Law and not by a few powerful States, notorious for acts of aggression and spoliation. I would encourage the Chinese to pursue vigorously their claim which would give us also a recent judicial view of a shameful, aggressive practice of a few States. The judges must eventually decide whether there were no rules of law, in Chinese, English and French Laws, as well as in International Law which prohibited the unlawful destruction and taking away of the property of others. Whether the laws of any particular country do or do not prohibit such wrongful dealings with property is not a matter to be settled with reference to the 1970 Convention.
    There may be eventual questions of statute of limitation but that is an issue which must be determined by the judges as a preliminary issue. Above all, they must determine whether the ordinary rules of limitation, enacted for the usual domestic situations apply at all in such cases.

    The judges would have to consider very carefully the meaning and extent of the provision of Article 10(3) of the UNIDROIT Convention which reads as follows: “(3) This Convention does not in any way legitimise any illegal transaction of whatever which has taken place before the entry into force of this Convention or which is excluded under paragraphs (1) or (2) of this article, nor limit any right of a State or other person to make a claim under remedies available outside the framework of this Convention for the restitution or return of a cultural object stolen or illegally exported before the entry into force of this Convention.”
    Lyndel Prott comments on this provision as follows: “This paragraph was the result. again, of the working group’s compromise and provides that the UNIDROIT Convention does not legitimise any prior illegal transaction, nor restrict a State from claiming back such items, in private law, by bilateral negotiation, inter-institutional arrangements or through the UNESCO Committee mentioned above”. Prott, p.82, Institute of Art Law, 1997.

    Most Westerners, including lawyers are allergic to any claims for restitution from the colonial past. They must ask themselves about their instinctive negative reactions to such claims without subjecting the claim to rigorous examination of the law and all the background to such claims. Laws must be interpreted in accordance with the objectives of the law and not necessarily in the interest of the powerful. Would we accept a conclusion that the laws of France, Britain and United States permitted the wrongful treatment of the property of others before the 1970 UNESCO Convention and the 1995 UNIDROIT Convention?

    Kwame Opoku.

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