* Associate, Katten Muchin Zavis, Chicago, Illinois. B.A. 1992, Smith College; M.A. 1999, East Asian Studies, Washington University; J.D. 1999, Washington University. I am grateful to Professor Frances H. Foster for her insightful comments and unfailing support. I am also grateful to Wei Luo of the Washington University Law Library, Ethan Zheng, the Schmidts, Hajo Oltmanns, and Professor William C. Jones.
1 See John Fleck, Valued Bird Fossil May Be Illegal, Albuquerque J., July 23, 1998, at A1.
2 See id.
3 See Lianhai Hou et al., Early Adaptive Radiation of Birds: Evidence from Fossils from Northeastern China, Science, Nov. 15, 1996, at 1146, available in 1996 WL 14644488.
4 See People’s Republic of China Cultural Relics Protection Law, Adopted at the 25^th Meeting of the Standing Committee of the Fifth National People’s Congress and promulgated by Order No. 11 of the Standing Committee of the National People’s Congress on and effective as of November 19, 1982 [hereinafter CRPL], reprinted in Xin Zhongguo Wenwu Fagui Xuanpian [Selected new Chinese Laws on Cultural Property] 212–19 (compiled by the State Cultural Relics Affairs Management Bureau, Cultural Relic Publishing House, 1987) [hereinafter New Cultural Property Laws]. An English version can be found in The Laws of the People’s Republic of China, 1979–1982, 313 (1982).
5 See J. David Murphy, An Annotated Chronological Index of People’s Republic of China Statutory and other Materials Relating to Cultural Property, 3 Int’l J. Cultural Prop. 159 (1994). Murphy provides a comprehensive list beginning in 1930 that includes regulations, rules, circulars, measures, laws, guides, announcements, and administrative measures among others. See id. The measures are promulgated by municipal, county, and provincial governments as well as by state authorities. See id.
6 See Report of the Committee on Education, Science, Culture, and Health to the November 1997 meeting of the National People’s Congress, reprinted in Zhonghua Renmin Gonghe Guo Renmin Daibiao Da Hui Tang Weiyuanhui Gongbao [The People’s Republic of China National People’s Congress Committee Reports] 757–58 (Chinese Democratic Legal System Publishing House, Beijing, 1997).
7 Philip Currie, a dinosaur curator for the Royal Tyrrell Museum of Paleontology in Alberta, Canada, has said that the most popular source for “nicer, showier, more expensive specimens” is China. Jeff Hecht, Psst . . . Wanna Triceratops?, New Scientist, Dec. 14, 1996, at 12; see infra note 32 (one estimate holds that 75% of the discovered Confuciusornis specimens have been smuggled out of China).
8 CRPL, supra note 4.
9 See Report of the Committee on Education, Science, Culture, and Health, supra note 6.
10 See Fleck, supra note 1.
11 See id.
12 See id.
13 See id.
14 See id.
15 See Fleck, supra note 1.
16 See id.
17 See Mitsumi Stone & Jennifer Couzin, Smuggled Chinese Fossils on Exhibit at Japan’s Miyazaki Prefectural Museum of Nature and History, Science, July 17, 1998, at 315, available in LEXIS, News Group File. The Japanese museums are the Miyazaki Prefectural Museum of Nature and History (in southwestern Japan), the Tottori Prefectural Museum (which removed its bird from display after an exposé on fossil smuggling published in the Asahi Shimbun), The Ibaragi Nature Museum, and the city museums of Osaka, Aichi, and Okayama. See id.
18 See id.
19 This was two years before the Confuciusornis sanctus was identified and published. A Confuciusornis also appeared in New York in 1993 in the hands of a Chinese businessman who tried to sell it to Phillips Fine Art Auctioneers. The businessman had bought the bird fossil, along with others he had with him, from Chinese farmers. Phillips’ experts had never seen anything like it before, but the firm did not purchase the bird because its policy is not to sell fossils which are “undescribed or new to science.” However, after it was identified, Phillips put one up for auction in December of 1996. See Hecht, supra note 7.
20 See Stone & Couzin, supra note 17.
21 See id.
22 The Ministry asked the museums to abide by a “moral regulation set by a conference of museums worldwide” which advises museums not to gather objects whose export is banned by the source country. Museums asked to follows laws of items’ origin country, Japan Econ. Newswire, Kyodo News Serv., July 28, 1998, available in LEXIS, News Group File.
23 See Stone & Couzin, supra note 17.
24 See id.
25 Id.
26 Id.
27 See id.
28 See Stone & Couzin, supra note 17.
29 See id. Archaeopteryx is a 150-million-year-old-bird discovered in Bavaria in 1861. It has been considered a possible link between birds and dinosaurs. However, because the bones of modern birds look so different from the bones of Archaeopteryx, some ornithologists doubt that modern birds descended from dinosaurs. The Confuciusornis is an intermediate species. It and another Liaoning discovery, the Liaoningornis, which looks more like modern birds, could show that Archaeopteryx and Confuciusornis are on a side evolutionary branch and that modern birds derived from Liaoningornis-type species and not Archaeopteryx. This could imply an even earlier origin for all birds, perhaps even before that of their putative ancestors, the dinosaurs. However, this issue is a hotly disputed topic among ornithologists and paleontologists. See Ann Gibbons, Early Birds Rise from China Fossil Beds, Science, Nov. 15, 1996, at 1083, available in 1996 WL 14644471.
30 The site is located 400 kilometers northeast of Beijing. It is part of the Yixian formation which is rich in fossils. See Justin Wang, Scientists flock to explore China’s “Site of the Century,” Science, Mar. 13, 1998, at 270.
31 Philip Currie (vertebrate paleontologist), quoted in id.; see also Large Number of Ancient Bird Fossils Discovered in Northeast China, Xinhua Eng. Newswire, Nov. 24, 1997, available in 1997 WL 15756353 (paraphrasing John Ostrom, Professor Emeritus of Yale University who is an expert on ancient birds: “no other place on earth has such a large fossil collection from such a crucial period of change on earth that is preserved so well . . .”).
32 See Stone & Couzin, supra note 17.
33 This is according to Larry Martin, a paleontologist at the University of Kansas who worked with Chinese scientists on the first description of the fossil. See Hecht, supra note 7.
34 See Large Number of Ancient Bird Fossils Discovered in Northeast China, supra note 31. Many of the Confuciusornis specimens which have appeared on the black market have gone to private collectors. See id.
35 In thinking about a market with two strongly identifiable sides, I chose to organize these issues in terms of the interests of each side. J. David Murphy similarly presents some of the same ideas in the context of a demand side and a supply side. See J. David Murphy, Plunder and Preservation: Cultural Property Law and Practice in the People’s Republic of China 4–5 (1995) [hereinafter Plunder]. John Henry Merryman organizes the two sides in a more general, theoretical characterization of cultural property in terms of “nation-oriented policy” or “cultural nationalism” and “object-oriented policy.” See John Henry Merryman, The Nation and the Object, 3 Int’l J. Cultural Prop. 64 (1994); see also John Henry Merryman, Two Ways of Thinking about Cultural Property, 80 Am. J. Int’l L. 831 (1986). Because discussions of the phenomenon as it relates to China are always so intertwined with the economic status of a developing country and market forces, I think a discussion of the issue which stays closer to economic terms is appropriate. I did not, however, want to use words like supply and demand which are strongly identified with economics because cultural and nationalistic factors are also important. J. David Murphy clearly identifies each side and the terms used to describe them. See Plunder, supra.
36 John Henry Merryman & Albert E. Elsen, Law, Ethics, and the Visual Arts 46 (1987). This group includes nations like China, Mexico, Guatemala, Russia, Peru, and many others. See id.
37 Id. This group traditionally includes the United States, France, Germany, Japan, Britain, and Switzerland. See Paul M. Bator, The International Trade in Art 16 (1988). Most cultural property headed out of China goes to Taiwan, Japan, Hong Kong, South Korea, Britain, the United States, and France. See China Customs Seize 200 Smuggled Relics, China Daily, June 11, 1998, available in LEXIS, News Group File. However, this is not to imply that these nations have no export controls of their own. Except for the United States and Switzerland, most nations have some kind of legal provision which acts to keep cultural property at home. See Merryman & Elsen, supra note 36, at 53. To further categorize nations in the international trade in cultural property, Italy and Switzerland are generally known as “transit states” where title can be laundered because of the ability of bona fide purchasers to take good title. Plunder, supra note 35, at 2. Hong Kong (at least before unification) and Macau stand in this position for the China trade. See id.
38 See Plunder, supra note 35, at 7.
39 See id. at 4.
40 See id. at 1. The early 1970s is considered the high point of concern over the illicit art trade. It culminated in the UNESCO [United Nations Education, Science, and Cultural Organization] Convention on the Illicit Movement of Art Treasures, Nov. 14, 1970, 10 I.L.M. 289 (1971) [hereinafter 1970 UNESCO Convention]. See Merryman & Elsen, supra note 36, at 71. The 1990s saw considerable publicity directed toward the legal issues surrounding cultural property, most notably in cases which argue for the return of cultural property lost or stolen during World War II. Also in the 1990s, the Unidroit Convention on Stolen or Illegally Exported Cultural Objects was promulgated, signed by 22 countries, ratified by two, and acceded to by one, China. See Marilyn Phelan, Cultural Property, 32 Int’l Law 447 (1998).
41 See Plunder, supra note 35, at 3.
42 See id.
43 The 1970 UNESCO Convention, Article 2 exhorts “to oppose . . . [the] illicit import, export and transfer of ownership of cultural property . . . .” 1970 UNESCO Convention, supra note 40, art. 2, 10 I.L.M. at 290; see also Merryman, The Nation and the Object, supra note 35 (asserting that the basic assumption of the Convention is that objects belong within the boundaries of the nations where they are found). According to Merryman, this assumption informs much of the internationl legislation on cultural property and the international policy discussions on the issue. See id. at 64.
44 In addition to its identification with colonialism, throughout Chinese history conquest has generally involved the destruction of the “cultural collections of the vanquished.” Id. at 44. Therefore, in China destruction of cultural property historically is linked with the destruction of the nation.
45 I have chosen to use the word “movement” as much as possible because it does not have the connotations that other words such as transfer, theft, plunder, loss, or gain do.
46 In the Colonial Era there was abundant international trade in cultural property from Africa and Asia. See Plunder, supra note 35, at 3.
47 See id.
48 Probably the most famous movement of cultural property that is always presented in terms of preservation of cultural patrimony is the movement of the Elgin Marbles to the British Museum.
49 The story of the Afo-A-Kom is retold in many sources. It is a religious icon of the Kom tribe that lives in Cameroon. It was stolen and sold to a French dealer who sold it to an American dealer. Ultimately it was returned to the Kom by the United States government. It is interesting for purposes of a discussion of cultural nationalism in that it is the symbol of a tribal group within a nation-state. The Cameroon ambassador to the United States, who was not a Kom, was “unenthusiastic” about its return. A cultural attache at the embassy at the time, a Kom, on the other hand, described the statue as “the heart of the Kom, what unifies the tribe, the spirit of the nation, what holds us together.” Merryman, The Nation and the Object, supra note 35, at 68. Aside from a demonstration of the strong emotion which can be stirred by issues of cultural property, the important point for purposes of this discussion is that it is the interest of the government of the nation state which is expressed in its cultural property laws. In a multi-ethnic state like China, which has an interest in encouraging recognition and consciousness of a single culture and an interest in not fanning the flames of nationalistic fervor among its population groups, this should be kept in mind. In the CRPL, the objects of historical, artistic, or scientific value which reflect the “social structure of each nationality” are protected. CRPL, supra note 4, art. 2(5).
50 Some of the objects once belonged to General Charles Gordon and are thought to have been looted by him during the burning of the Summer Palace by British and French troops in 1860. See Plunder, supra note 35, at 45. Scottish curators have “acknowledge[d] that the volume and strength of East Asian Art in the National Museum of Scotland owe in part to the efforts of the French and British troops that sacked the Summer Palace in Beijing in 1860, and the consequent flooding of auction houses in Paris and London with imperial treasures.” Pilfered Gifts from Asia, Daily Yomiuri, Jan. 19, 1997 (reviewing Jane Wilkerson & Nick Pearce, Harmony and Contrast (1996)).
51 Guo Zhan, division chief for protection management with the State Bureau of Cultural Relics expressed this attitude in speaking about the designation of UNESCO World Heritage Sites in China: “[t]he honour of being placed on the list raises the status of the places . . . .” China: Protection or tourism, a cultural conundrum, China Daily, July 31, 1998.
52 Wang, supra note 30. The same dynamic is apparent in the following: Chinese scientists were “elated” when an international panel endorsed a site in Zhejiang province as a “reference point” for the middle Ordovician period. “The designation represented an international seal of approval for the nation’s scientific prowess and its ability to be the steward for a site that would draw researchers from around the world.” However, the International Commission of Stratigraphy vetoed the designation in the end, turning elation to indignation and anger. The article notes that “[f]or many Chinese scientists, the most important element [to collaboration] is mutual respect.” Geoscientists Seek Common Ground on Collaborations: Working in China, Science, May 2, 1997. However, China will be in the global spotlight on this issue during the Fifth International Conference on Birds and Evolution which will be held in China in the year 2000. The birds found in Liaoning are “high on the list of discussion topics.” Large Number of Ancient Bird Fossils discovered in Northeast China, supra note 31.
53 Wang, supra note 30.
54 Id.
55 See J. David Murphy, The People’s Republic of China and the Illicit Trade in Cultural Property: Is the Embargo Approach the Answer?, 3 Int’l J. Cultural Prop. 227, 234 (1994).
56 See id. at 234–35.
57 See generally, Bator, supra note 37, at 25.
58 See Hou, supra note 3, at 1164.
59 However, it is notable that once the bird is out of the ground and its placement information is recorded, it loses this value and presumably, if it is no longer needed in China for research, education, or as an example of a type, it could leave without loss of crucial information. This fact was recognized in a set of regulations promulgated in 1979 by the State Council. The main goal of these regulations is how to best manage cultural relics to realize the most profit in foreign exchange. The most efficient use of a fossil would be to learn as much as possible from it and then sell it. See Trial Measures for Control of the Export of Cultural Relics with Special Permission (promulgated and approved by the State Council of the People’s Republic of China on July 31, 1979), CEILaw: CEI Chinese Law and Regulation database <http://www.ceilaw.com.cn>.
60 The CRPL calls for educational campaigns. See CRPL, supra note 4, art. 5. The birds from Liaoning were exhibited in Beijing in an exhibit entitled, “Exhibition of Primitive Bird Fossilized Treasures from Western Liaoning.” Sinosauropteryx Fossils on Display in Beijing, Xinhua Eng. Newswire, Mar. 23, 1997, available in 1997 WL 3751967.
61 Three Chinese institutions, the National Geological Museum of China, the Institute of Vertebrate Paleontology and Paleoanthropology, and the Nanjing Institute of Geology and Paleontology have mounted expeditions at the Sihetun site. See Wang, supra note 30. The identification of the Confuciusornis was published in Science by Hou Lianhai and three other scientists. See Hou et al., supra note 3. Chen Peiji of the Nanjing Institute of Geology and Paleontology looks forward to international collaboration to help publish articles in English. See id.
62 See Plunder, supra note 35, at 5. Murphy distinguishes between “hoarding” relics and mining them as a source of income. See id. at 157.
63 In 1979 the State Council emphasized that “specially permitted export” of cultural relics is allowed “in order that the export of a small quantity of cultural relics will bring in a relatively great amount of foreign exchange so as to support the development of the socialist four modernizations.” Trial Measures for Control of the Export of Cultural Relics with Special Permission, supra note 59.
64 See Bator, supra note 37, at 27. This fact is reflected in a state attitude that the objective of cultural property management in China is the “accumulation of revenue through tourism and sales.” Plunder, supra note 35, at 107.
65 See Wang, supra note 30. Zhao Yibing, the head of bird fossil security, said, “Beipiao produces nothing that deserves attention but those fossils. They are our tickets to the outside world.” Id. There was an International Dinosaur Festival in Nanyang City, Henan Province where a rich dinosaur egg bed was discovered. The discovery site was opened to tourists. See Henan to offer ten new tourism programs, Xinhua News Agency, Nov. 7, 1995, available in 1995 WL 7715862.
66 Commentators describe the illicit cultural property trade as a pyramid with a large number of peasants on the bottom, numerous dealers in the middle, and relatively few collectors and museums in market nations at the top. See Plunder, supra note 35, at 5.
67 See Wang, supra note 30.
68 See Fleck, supra note 1.
69 See Bator, supra note 37, at 21. This is John Henry Merryman’s first way of thinking about cultural property, “cultural internationalism.” See Merryman, Two Ways of Thinking about Cultural Property, supra note 35, at 831.
70 See Bator, supra note 37, at 21.
71 Murphy notes that cultural property must compete with public welfare needs in a struggle for limited resources. See Plunder, supra note 35, at 156. Such lack of funds has generally been blamed for the ineffective protection of cultural relics. See id. at 65.
72 See Bator, supra note 37, at 22.
73 This attitude is reflected by the former assistant direction of the Senkenberg Museum (which has a Confuciusornis sanctus) in Germany, Stefan Peters: “it would bother me a little if they really were illegally imported, [but] . . . it is better that museums acquire these specimens rather than some private collection.” Stone & Couzin, supra note 17. This point raises a question considered in relation to the art market: whether there ought to be a presumption toward public rather than private ownership. See Bator, supra note 37, at 22.
74 In Chinese art history copying was considered an expression of respect and there were and are many forgeries. The practice of copying works, which began in the Song and Yuan dynasties, was not stigmatized but rather was seen as a form of appreciation. See Plunder, supra note 35, at 31. The number of forgeries also increased in the commercialized art market of the Ming Dynasty. See id. The fact of many forgeries makes the issue of identity of cultural property that much more complicated in China: what is the status of copies? Museums will commonly exhibit copies of artifacts. J. David Murphy notes that a 1992 exhibition at the Palace Museum in Beijing features “more than 300 reproductions of rare cultural relics from the Taipei Palace Museum.” Id. at 32.
75 According to Murphy, there are so many relics uncatalogued in storehouses that museum staff cannot determine when something is missing. Relics suffer damage from inferior storage conditions. Numbers of uncatalogued items add to enforcement problems and preservation problems. See id. at 63–65.
76 Murphy, supra note 55, at 227.
77 Id. at 228.
78 See J. David Murphy, Hong Kong, 1997, and the International Movement of Antiquities, 4 Int’l J. Cultural Prop. 241, 241 (1995).
79 Id. A thriving market in contemporary art adds to China’s image as an important part of the cultural property trade. See id.
80 See Fleck, supra note 1.
81 See Large Number of Ancient Bird Fossils Discovered in Northeast China, supra note 31.
82 See Fleck, supra note 1 (citing Luis Chiappe, an expert in the species at the American Museum of Natural History in New York). According to Chris Beard, a paleontologist at the University of Pittsburgh, it is well known that fossil smuggling is a widespread problem in China. See id.
83 Henry Galiano, owner of Maxilla and Mandible, a fossil shop in New York City that has bought and sold Confuciusornis specimens, says his customers are interested in fossils that are “beautiful” or “that they can relate to.” Hecht, supra note 7. Rarity is also in the interest of the fossil dealer. According to Larry D. Martin, who studies the Confuciusornis, the commercial value of the specimens is waning because there are so many of them. See Wendy Marston, Jurassic Mart: The Conflict between Paleontologists and Commerical Fossil Traders, Sciences, July 17, 1997, available in 1997 WL 13512885. Fossils in commercial markets are identified only by their name, state of origin, and location of find. See id. According to David Krause, a former president of the Society of Vertebrate Paleontology, science is the loser in the commercial market where the specimen loses its value and “potentially becomes an art object.” Id.
84 In the U.S., the American Association of Paleontological Suppliers seeks to protect the interests of commercial fossil collectors. It sponsored the Fossil Preservation Act of 1996 which sought to gain access to public land for commercial collectors, but the bill did not pass. See Marsten, supra note 82. Academic paleontologists also do not necessarily want to see a drop in the supply from commercial collectors. “A lot of this material would never be dug up if it were not for the commercial incentive,” according to Storrs Olsen of the Smithsonian Institution in Washington, D.C. Hecht, supra note 7. One “eminent paleontologist” in China has expressed the same sentiment: “we should thank the explorers—we just can’t afford to fund the same exploration ourselves.” Justin Wang, China’s New Spirit of Capitalism Unearths Clue to Prehistoric Past, World Paper, Sept. 9, 1997, available in 1997 WL 9862942.
85 People’s Republic of China Constitution, ch. 1, art. 22 (1982). Article 119 specifies that the governments of the autonomous regions are to “independently administer” their own cultural affairs.
86 See Murphy, supra note 5. For an exhaustive collection of measures in Chinese, beginning in 1950, see Selected New Cultural Property Laws, supra note 4. In addition, China has acceded to the 1970 UNESCO Convention on the Illicit Movement of Art Treasures, but has seemingly not enacted domestic implementing legislation. International law is automatically implemented as part of PRC law and where there is a conflicting provision between the two, international law prevails. See Plunder, supra note 35, at 80–81. However, according to Murphy, the omission “probably” does not affect the applicability of the convention to China. This issue is beyond the scope of this Article which is not concerned with the Confuciusornis once it leaves China.
87 See CRPL, supra note 4; People’s Republic of China Criminal Law, adopted 5th Nat’l People’s Cong., 2d Sess. (July 1, 1979) (effective Jan. 1, 1980) and amended by the 5th Sess. of the 8th Nat’l People’s Cong. (Mar. 14, 1997), <http://wnc.fedworld.gov>, document number, FBIS-CHI-97–056 [hereinafter 1997 Criminal Law]. In addition, in 1982, the Standing Committee promulgated the Decision of the Standing Committee of the National People’s Congress Regarding the Severe Punishment of Criminals who Seriously Undermine the Economy (adopted by the 22d Sess. of the Standing Committee of the 5th Nat’l People’s Cong., Mar. 8, 1982) [hereinafter Decision], reprinted in The Criminal Law and the Criminal Procedure Law of China 229 (1984). The Supreme People’s Court and the Supreme People’s Procuratorate recommended that cultural property cases be analysed according to these three laws. See Explanation of Several Questions Concerning the Applicable Law in Handling Cases of Stealing, Illegally Recovering, Dealing in, and Smuggling Cultural Relics, promulgated by the Supreme People’s Court (Nov. 27, 1987), CEILaw database, <http://www.chinalawinfo.com> [hereinafter Explanation]. The 1997 Criminal Law which amended the 1979 Criminal Law nullified the Decision. See 1997 Criminal Law, appendix I. The Decision supplemented the 1982 CRPL and the 1979 Criminal Law in response to “rampant . . . theft and sale of precious cultural relics.” Decision, preamble. It increased the stringency of punishments, most significantly by introducing the death penalty (subsequently adopted by the 1997 Criminal Law) for the most serious crimes involving cultural relics. See Decision.
88 See Murphy, supra note 78, at 243 (for example, the Explanation and the Guidelines, supra note 87).
89 Customs regulations are important in an administrative sense though serious cases are dealt with under the Criminal Law. See Plunder, supra note 35, at 118. In response to the problem of dinosaur egg smuggling, fossils have been the object of specific regulations: “New Provisions Made By the Customs Concerning the Export of the Fossils of Ancient Vertebrates and Ancient People.” Plunder, supra note 35, at 119, referencing 7 China Customs 13 (1990).
90 See id. at 78. For example, in the “dinosaur eggs case” discussed in this paper (see Appendix for translation and infra notes 185–203 and accompanying text for discussion), the Announcement Concerning the Illegal Excavation, Buying and Selling, and Smuggling of Fossilized Dinosaur Eggs was promulgated by the Xixia County People’s Government, Henan Province, on June 13, 1993. See Zhang Biliang and Others Failing to Sell and Speculate for Profit on Fossilized Dinosaur Eggs, Xixia County People’s Court 1996, reprinted in 3 Renmin Fayuan Anli Xuan [Selected Cases of the People’s Court] 43–46 (China Practicing Law Institute ed., People’s Court Publishing House 1996) [hereinafter Zhang Biliang Case].
91 Jin Zi-tong, Analysis Concerning the Crimes Involving Cultural Relics, 7 Legal Science 23–25 (1988), quoted in Plunder, supra note 35, at 110.
92 See 1970 UNESCO Convention, supra note 40, art. 1, 10 I.L.M. at 289, for a general definition. J. David Murphy notes that the UNESCO convention is “often regarded as subjective and overbroad for practical purposes.” Plunder, supra note 35, at 198. China was a signatory of the Convention, and the United States has implemented parts of it. See Patty Gerstenblith, Nations’ Treasures Guarded by Treaty, Nat’l L.J., July 13, 1998, at A12.
93 See Plunder, supra note 35, at 19; CRPL, supra note 4, art. 2(1). In China (and similarly in other countries) immovables include sites of historic, revolutionary, or national importance such as the Forbidden City or the former house of Mao Zedong’s first wife, see Floods Damaged World Heritage Sites in China, Japan Econ. Newswire, Sept. 20, 1998, and Tiananmen Square.
94 In the controversy between the Shanghai Cultural Ministry and the Lincoln Center Festival which resulted in cancellation of an American staging of Tang Xianzu’s “The Peony Pavilion” in New York City, the opera was described by the Shanghai Cultural Minister, Ma Bomin, as “a precious piece of Chinese culture.” Concern that the American interpretation of the Ming-dynasty opera distorted the work and presented an improper view of China led to the production’s demise. The desire to control the work’s dissemination and even meaning seems to push it within the realm of what China considers its cultural property. See Edward Rothstein, Cultural Modernity and its Gifts of Grace and Struggle, N.Y. Times, July 20, 1998, at E2. In the end, Chen Shi-Zheng’s staging of “The Peony Pavilion” was presented by the Lincoln Center Festival in New York City in July of 1999. See Classical Music Listing, New Yorker, July 12, 1999, at 13. In a caption to a photograph of a singer, the magazine quoted Chinese officials as having labeled it, “feudal, superstitious, and pornographic.” Peonies, Uncut, New Yorker, July 12, 1999, at 56.
95 See 1970 UNESCO Convention on the Illicit Movement of Art Treasures (emphasis added), 10 I.L.M. 289 (1971).
96 Id. art. 1(a).
97 The word “wenwu” is translated “cultural relic.” A Chinese English Dictionary (Beijing Foreign Languages Institute ed., 1993).
98 Basic Principles of Civil Law 90 (William C. Jones ed., 1989). According to the Civil Law, this property is not freely traded: it cannot be exported privately, it cannot be sold privately to foreigners, and it cannot be sold at a profit; therefore, it does not have the same characteristics generally attributed to the English term “property.” Professor Jones uses the term “cultural object.” Id. If the Confuciusornis sanctus had been in a private collection, its movement would have been sharply curtailed: cultural relics in private collections can only be purchased by units designated by the cultural administration. See CRPL, supra note 4, art. 24. A private person could not have sold it for profit, and furthermore is forbidden to sell it to a foreigner. See id. art. 25.
99 See CRPL, supra note 4, art. 2.
100 See id.
101 Id.
102 See id.
103 See id. arts. 1–6.
104 See CRPL, supra note 4, arts. 1–6.
105 Id. art. 3. In 1987, the State Council issued an announcement in response to increased smuggling and excavation robbing. It directed local governments to implement the 1982 CRPL. See Guanyu daji qiejue he zousi wenwu huodong de tonggao [Announcement on Striking Hard Against Smuggling Cultural Relics Activities], ¶ 4, reprinted in New Cultural Property Law, supra note 4, at 326, and discussed in Plunder, supra note 35, at 98. According to Murphy, the implementation was accomplished simply by re-enacting a version of the CRPL locally. See id.
106 CRPL, supra note 4, art. 4. State ownership of unexcavated relics is not new to Chinese law. The 1930 Law on the Preservation of Ancient Objects provided for it and for excavation by Chinese academic institutions rather than foreign scientists. See New Cultural Property Law, supra note 4, at 33.
107 This is a common provision in the protection regimes of source nations. See Merryman, The Nation and the Object, supra note 35, at 62. It serves to change “illegal export” cases into “theft” cases and facilitates return of objects from countries which are protective of owners rather than bona fide purchasers (common law states). According to J. David Murphy, as of 1994, there has not been an instance of China asserting title in the court of another state. He attributes this to the Chinese preference for negotiation rather than confrontation. See Plunder, supra note 35, at 87.
108 See CRPL, supra note 4, art. 5.
109 See id.
110 See Plunder, supra note 35, at 91.
111 CRPL, supra note 4, art. 16.
112 Id.
113 See id. art. 17.
114 See id.
115 Id. art. 18.
116 See CRPL, supra note 4, art. 21. Although these provisions seem to reflect a concern for exploitation and the nationalistic bent of the law, the policy of prohibiting foreign participation has changed. “China increasingly encourages foreign technological assistance and funding.” Plunder, supra note 35, at 91.
117 See CRPL, supra note 4, arts. 7–15. Sites listed are: “sites related to revolutionary history, memorial buildings, sites of ancient culture, ancient tombs, ancient architectural structures, cave temples, stone carvings, etc.” Id. art. 7.
118 See id. arts. 16–21. This Article does refer to sites of “historical and cultural value” (art. 17) and “ancient culture and ancient tombs” (art. 19).
119 See id. arts. 10–13, 18–19.
120 Id. art. 9.
121 This confusion is evident in the case translated in the Appendix. See infra Part IV.
122 See Zhu Mu Zhi, Explanation Concerning the Draft Law of the People’s Republic of China on the Protection of Cultural Relics, 8 Jurisprudence 24–26 (1988), cited in Plunder, supra note 35, at 91. On the closure of sites, Zhou Enlai espoused a “common view . . . that undiscovered treasures should remain in the ground for future generations.” Plunder, supra note 35, at 124. Sites are also sealed up for lack of funding. See id. at 66–67.
123 See Plunder, supra note 35, at 127.
124 Id. at 60.
125 See id.
126 Id. (discussing The Ranking and Standard of Cultural Relics, a 1987 Ministry of Culture circular). According to Murphy, curators and those in the art trade have not been able to determine how relics are graded: “It is Grade One because the State Bureau of Cultural Relics says it is,” says one Hong Kong Museum curator. Id. at 86.
127 Detailed Rules for the Implementation of the Law of the People’s Republic of China on the Protection of Cultural Relics (promulgated by the State Bureau of Cultural Relics, May 5, 1992), reprinted in Zhonghua Renmin Gonghe Guo Falu Quanshu, 1990–1992 [People’s Republic of China Legal Encyclopedia, 1990–1992] 1859–63 (Jilin People’s Publishing House, 1993) [hereinafter Detailed Rules], and discussed in Plunder, supra note 35, at 102–03.
128 Detailed Rules, supra note 126, at 1859, art. 2. Ordinary relics are “those originating after 1795 and without historical, artistic, or scientific value.” This definition raises the question of whether there are any fossils that are just “ordinary” relics. See Plunder, supra note 35, at 114.
129 Criminal Law issues are discussed infra Part III.D.
130 See Plunder, supra note 35, at 111.
131 CRPL, supra note 4, art. 7.
132 See id. Counties, autonomous regions, and cities must have the approval of their people’s governments and must report to the governments of the provinces, autonomous regions, and municipalities under state control. Provinces, autonomous regions, and municipalities under state control must have approval of their people’s government and report to the State Council. See id.
133 Id.
134 See discussion on China’s interests in fossils, supra Part II.B.
135 The CRPL also leaves room for nationalistic choices. Although the cultural relics of the various nationalities receive protection under the law, see CRPL, supra note 4, art. 2(5), centralized decision-making could lead to preference for Han Chinese sites. Another potential problem might be the use by centralized authority of cultural relics in ways a national minority might object to. The opening of the Potala Palace to tourists is perhaps an example of this (although, of course, it is impossible to know whether it would be open now even if the present Dalai Lama was living there). See also Robert L. Thorp, “Let the Past Serve the Present”: The Ideological Claims of Cultural Relics Work, China Exchange News: A Review of Education, Science, and Academic Relations with the People’s Republic of China (Summer 1992). The quote in the title is attributed to Mao Zedong.
136 CRPL, supra note 4, art. 29.
137 See above narration on the market value of the Confuciusornis sanctus. In addition, one article reported that farmers sold fossilized birds from Liaoning to the China Geological Museum for 120,000 yuan, or $14,000. This was one-fifth of the museum’s total annual grants. See Justin Wang, China’s new spirit of capitalism unearths clue to prehistoric past, Worldpaper, Sept. 9, 1997, available in 1997 WL 9862942.
138 Articles 30 and 31 of the CRPL were amended in 1991. The Laws of the People’s Republic of China, 1990–1992, 265 (1993) [hereinafter 1991 Amendments]. A Chinese version can be found in People’s Republic of China Legal Encyclopedia, supra note 127, at 1845.
139 See 1991 Amendments, supra note 138, at 265.
140 Id. art. 31(2).
141 See id. art. 30(2).
142 See id. art. 30(5).
143 See id. art. 30(5–6). The statute reads, “by the administrative departments for industry and commerce,” but does not indicate exactly which departments these are. 1991 Amendments, supra note 138, art. 30(5).
144 In the prior law, cooperation between the two sides of commerce and industry and cultural administration was not explicit. The Ministry of Culture was concerned about a perceived confusion as to departmental responsibilities for enforcement. The amendments were meant to be a strengthening measure and, having been introduced to the Standing Committee by no less a person than Premier Li Peng, they were a response to the rising number of crimes having to do with cultural relics and smuggling. See Plunder, supra note 35, at 96.
145 According to Murphy, the income from the various “business enterprise units,” “presumably the state sales outlets,” is to be used for protection work. Plunder, supra note 35, at 102 (discussing the Detailed Rules).
146 Detailed Rules, supra note 127, arts. 44–45.
147 Id. art. 45.
148 1991 Amendments, supra note 138, art. 31. This phrase also appears in the 1982 version of Article 31. See CRPL, supra note 4, art. 31.
149 See Explanation, supra note 87. The Explanation contains guidelines for how to deal with cultural property cases. It provides that penalties are to be awarded on the basis of the Criminal Law and the Decision. See also 1997 Criminal Law, supra note 87, arts. 324–29.
150 1997 Criminal Law, supra note 87, arts. 324–29. The number and detail of the provisions is much expanded from the previous Criminal Law. In the 1980 Criminal Law only two articles dealt specifically with cultural property, Articles 173 and 174. See People’s Republic of China Criminal Law, adopted 5th Nat’l People’s Cong., 2d Sess. (July 1, 1979) (effective Jan. 1, 1980).
151 See 1997 Criminal Law, supra note 87, art. 324.
152 See id. art. 325.
153 See id. art. 326.
154 See id. art. 327.
155 See id. art. 328.
156 See Plunder, supra note 35, at 136, n.89, citing Han Meixiu, Two Questions that should be Noted in Implementing the Law on the Protection of Cultural Relics, 8 Jurisprudence 24–26 (1983). Han’s observations apply to the pre-1997 version of the Criminal Law. See id.
157 See 1997 Criminal Law, supra note 87, art. 328 (last sentence).
158 Id.
159 CRPL, supra note 4, art. 16.
160 “Improvement” of found objects was long a feature of Chinese collecting and museology so the possibility is not so far fetched. See Plunder, supra note 35, at 31. See also Hecht, supra note 7. Hecht reports that broken fossils from China sometimes look like they have been repaired under a microscope, “as if they came through an institution.” Id. (quoting Charlie Magorem, who runs The Stone Company, a fossil store in Boulder, Colorado).
161 See 1997 Criminal Law, supra note 87, arts. 324–28. Criminal detention is a period of not less than one month and not more than six months during which a prisoner may go home one or two days a month. Id. arts. 43–44.
162 Articles 324, 326, and 328 of the 1997 Criminal Law have harsher penalties in “serious” situations. Id. arts. 324, 326, 328. Article 326 situations are divided into “serious” and “exceptionally serious.” Id. art. 326. In the dinosaur egg case, see discussion below, the fact that the defendants engaged in speculation and profiteering made the situation serious.
163 See Articles 324, 325, and 328 specify that they apply to “precious” relics. Id. arts. 324, 325, 328. Precious relics are relics of grade one, two, or three as defined by the Detailed Rules, supra note 126, art. 2. Which relics these are exactly, however, is unclear. See supra note 128 on the definition of ordinary relics. The 1987 Explanation lists the grade of the relic as a factor as well. See Explanation, supra note 87, introductory paragraph.
164 See 1997 Criminal Law, supra note 87, art. 328(1–4).
165 See id.
166 See Decision, supra note 87. The death penalty provided in the Decision is preserved in Article 264 of the 1997 Criminal Law.
167 Most important is the loss of information on the fossil’s stratigraphic location that is vital for dating and understanding fossils in the context of their ancient environments. Hecht, supra note 7, at 12. See also supra notes 57–59 (discussing the discovery of Confuciusornis fossils in groups).
168 1997 Criminal Law, supra note 87, art. 328(1) and (4).
169 See id. art. 328(2) and (3).
170 See id. art. 328. There are also consequences for anyone who allowed the loss to occur. State personnel who cause damage or loss of “precious cultural relics through serious irresponsibility” can receive not more than three years in prison or criminal detention if the circumstances are serious. Id. ch. IX, Dereliction of Duty, art. 419.
171 See id. art. 328.
172 See 1997 Criminal Law, supra note 87, art. 328.
173 Id. art. 264.
174 Id.
175 See Decision, supra note 87. However, Article 264 does not require exporting as well as theft. 1997 Criminal Law, supra note 87, art. 264. The Decision awarded the death penalty in “serious” circumstances of “stealing and exporting precious cultural relics.” Decision, supra note 87. This may be indicative of a rise of an illicit domestic market for relics if exporting is not the most important element.
176 1997 Criminal Law, supra note 87, art. 264(2).
177 Plunder, supra note 35, at 114. 1795 was the last year of the reign of the Emperor Qianlong.
178 Detailed Rules, supra note 127, art. 2.
179 See supra note 128. The court in the dinosaur egg case did find that eight of the fossilized dinosaur eggs were ordinary cultural relics indicating that there is such a thing as an “ordinary” fossil. Zhang Biliang Case, supra note 90.
180 According to Murphy, thefts of ordinary relics fell under the general theft provision of the 1980 Criminal Law. Plunder, supra note 35, at 111. It is possible to receive a harsher sentence under Article 263, including death, but only for certain listed offenses. There is another potential problem, not specific to fossils, for use of Article 263 to punish “not serious” theft of “ordinary” relics. Article 263 applies only to “public or private property,” while cultural property seems to fall somewhere in between. 1997 Criminal Law, supra note 87, art. 263. See also supra note 98 (discussing the definition of cultural relics).
181 1997 Criminal Law, supra note 87, art. 151.
182 Id.
183 Id.
184 Id.
185 See Zhang Biliang Case, supra note 90.
186 There is no formal system of precedent, but some records are kept, primarily so judges can refer to them for guidance. See Thomas Chiu et al., Legal Systems of the P.R.C. 35 (1991).
187 The introduction to Selected Cases of the People’s Court, where the Zhang Biliang case is reprinted, states that the goal of the collection is to reflect the basic state of the trial work of the People’s Court and to sum up the lessons of experience, guide trial work, promote theoretical study, propagate the socialist legal system, and to widen the social effects of the handling of cases by the People’s Court. See Renmin Fayuan Anli Xuan 1992-1996 [Selected Cases of the People’s Court 1992-1996] 1 (China Practicing Law Institute ed., People’s Court Publishing House 1997).
188 “Speculation and profiteering” is a crime prohibited in the 1980 Criminal Law. Supra note 86. At the time of the case the provisions were 117 and 118. Neither provision mentioned cultural property. If the case happened today the relevant article would be 326 concerning reselling cultural relics for profit. See 1997 Criminal Law, supra note 86, art. 326(4).
189 See Zhang Biliang Case, supra note 90, at 45.
190 Id.
191 Id.
192 See id.
193 Id.
194 See Zhang Biliang Case, supra note 90, at 45.
195 See id; see also CRPL, supra note 4, art. 2, sentence 3 (“Fossils of paleovertebrates and paleoanthropoids of scientific value shall be protected by the state in the same way as cultural relics.”).
196 See Zhang Biliang Case, supra note 90, at 45.
197 Id. at 46.
198 Id.
199 See id; see also Explanation, supra note 87, introduction. As noted, the Decision has been repealed by the 1997 Criminal Law. See supra note 87.
200 See Zhang Biliang Case, supra note 90, at 46.
201 See id.
202 See id. This factor is included in the 1997 Criminal Law as a factor making a situation involving illegal digging and robbing of tombs serious and mandating a possible death penalty. See 1997 Criminal Law, supra note 87, art. 328(2).
203 See Zhang Biliang Case, supra note 90. Organized crime is also included in Article 328(2). See 1997 Criminal Law, supra note 87, art. 328(2).
204 See China Customs Seize 200 Smuggled Relics, supra note 37.
205 Cultural relics smuggling is so big that Chubb Insurance Corporation wants to provide insurance for China’s cultural property. The corporation is cooperating with the State Bureau of Cultural Relics in an effort to teach the country’s museum curators and staff about cultural property insurance. The program is known as “Friends of Chinese Treasures.” Chubb Corp Looking to Insure Cultural Property in China, Asia Pulse, Apr. 7, 1997, available in LEXIS, News Group File.
206 See China Customs Seize 200 Smuggled Relics, supra note 37.
207 See China: Stolen Bust Seized in US, China Daily, June 15, 1998, available in 1998 WL 7596211. If the rule of thumb that only 10% of illegal trade is uncovered applies to cultural relics, the volume getting out of the country is potentially very large. See Lu Ning, China Mounts Big Drive to Combat Surge in Smuggling, Bus. Times (Singapore), June 12, 1998, available in 1998 WL 13932463.
208 See China: Stolen Bust Seized in US, supra note 207.
209 Murphy, supra note 78, at 242. This is at least as of 1992. In the month of September 1993, Hong Kong officers seized 107 artifacts worth more than HK$10 million. Id. The Economist reported in 1992 that the art market in China is said to be worth hundreds of millions of dollars a year. That year the State Bureau of Cultural Relics held its first public auction of antiques in “an attempt to get a grip” on the market. Let Another Hundred Flowers Bloom, Even if Some are Weeds, Economist, Oct. 17, 1992, available in 1992 WL 11278856.
210 See id. In October of 1997 airport customs in Guangzhou intercepted sixteen express delivery boxes of mammoth skull and tusk fossils marked as bone and stone handicrafts from the Shenzhen Weisi Industry and Trade Company. See Chinese customs uncovers mammoth fossil-smuggling attempt, Agence-France-Presse, Oct. 26, 1997, available in 1997 WL 13421029.
211 See China: Stolen Bust Seized in US, supra note 207. According to Pan Fengxiang, an official with the Ministry of Public Security, Guangdong is the major exit point because of its closeness to Hong Kong, “where the trade in relics is legal.” Id.
212 See id. Lack of enforcement technology is a further problem. Most relics pass through customs in containers, but only two customs centers in Shenzhen have advanced container scanners which can be used to detect hidden relics. See Officials fighting exports of relics, China Daily, Aug. 5, 1995, available in LEXIS, FT Asia Intelligence Wire.
213 Stone & Couzin, supra note 17.
214 See id.
215 See id.
216 See Fleck, supra note 1.
217 See id.
218 See Stone & Couzin, supra note 17.
219 China Customs seize 200 smuggled relics, supra note 37.
220 The campaign has been intensified recently by a September national conference on anti-smuggling measures and speeches by both Jiang Zemin and Zhu Rongji on the subject. See Zhu Rongji, Unify Thinking, Strengthen Leadership, and Swiftly and Sternly Crack Down on the Criminal Activities of Smuggling, speech delivered at the National Conference on the Work of Cracking Down on Smuggling, 15 July 1998, <http://wnc.fedworld.gov>, doc. no. FBIS-CHI-98–245 [hereinafter Zhu Rongji speech]. Zhu’s speech discussed creation of a reform of the current anti-smuggling system in the form of a new state anti-smuggling police (SASP) unit which will concentrate specifically on smuggling. The hope is to develop a more efficient law-enforcement system which can move quickly enough to take advantage of clues and evidence which, in the case of international smuggling, can “vanish instantly.” See id. Applied to cultural relics smuggling, speed and expertise is important to combat more well-organized smuggling rings mentioned above.
221 See China: Stolen Bust retrieved in US, supra note 37.
222 See Shanxi to launch anti-smuggling campaign, China Bus. Info. Network, Aug. 27, 1998, available in 1998 WL 13494161.
223 See Zhu Rongji speech, supra note 200.
224 Theft from museums is a problem: an official of the General Administration of Customs noted that a number of items recently seized had been stolen from museums. See China Customs Seize 200 Smuggled Relics, supra note 37. Murphy reports an instance of a museum shop manager who stole 1,814 cultural relics, seven of which were “priceless treasures.” Also significant could be the relatively low salaries of museum officials. He notes that it is sometimes hard to know whether losses are due to inside theft or simply a lack of documentation and institutional safeguards. There is no national register or system to report lost relics. See Plunder, supra note 35, at 3. See supra note 160 on evidence of “improvement” of fossils that might indicate they came through institutions.
225 See China Customs Seize 200 Smuggled Relics, supra note 37.
226 See China: Zhu’s speech on anti-smuggling released, China Bus. Info. Network, Sept. 2, 1998, available in 1998 WL 13494256.
227 See China seals off dinosaur eggs, Irish Times, Sept. 24, 1997, available in 1997 WL 12026463.
228 See Dinosaur eggs discovered in South China, Xinhua Eng. Newswire, Sept. 10, 1997, available in 1997 WL 11198419.
229 See Wang, supra note 30.
230 See id.
231 See id.
232 See Donald C. Clarke et al., Introduction to The Law of the People’s Republic of China 22 (1998) (unpublished manuscript provided by Professor William C. Jones and used in the Fall 1998 Chinese Law course at Washington University School of Law). Popular legal education has been under way since the 1980s and basic materials for a wide audience have been developed introducing the constitution and major laws. Id.
233 In the case of those charged with enforcing the laws, this education is especially critical. Recently the State Bureau of Cultural Relics has cooperated with customs and public security bureaus to teach customs officers to recognize cultural relics. China Customs Seize 200 Smuggled Relics, supra note 37.
234 See Sinosauropteryx Fossils on Display in Beijing, Xinhua Eng. Newswire, Mar. 23, 1997, available in 1997 WL 3751967. Exhibits like this also fulfill the education value identified in the first part of this paper. Chinese citizens had the opportunity to learn about the past and about the achievements of their scientists.
235 China seals off site containing thousands of dinosaur eggs, Agence-France-Presse, Sept. 23, 1997, available in 1997 WL 13400409.
236 The items were smuggled to Britain in 1994 and returned to China in May of 1998. See Officials Fighting Exports of Relics, China Daily, Aug. 5, 1998, available in LEXIS, FT Intelligence Asia Wire; see also Smuggled Relics Return to China, China Daily, Sept. 2, 1998, available in LEXIS, News Group File. The exhibit is scheduled to be sent throughout the country. Id.
237 An exhibition of objects returned from U.S. customs was put on in the Chinese embassy in Washington; the countries held a ceremony marking their return. The demonstration exhibited not only the relics, but also China’s enforcement success and the comity of the U.S. See U.S. Customs Return Seized Antiquities to China, China Bus. Info. Network, May 7, 1998, available in LEXIS, News Group File.
238 See Dinosaur Eggs Discovered in South China, supra note 228.
239 Wang, supra note 30.
240 Article 1 reads: “This law is formulated with a view to strengthening state protection of cultural relics, contributing to the development of scientific research, inheriting the splendid historical and cultural legacy of our nation, conducting education in patriotism and in the revolutionary tradition, and building a socialist society with an advanced culture and ideology.” CRPL, supra note 4, art. 1.
241 See supra discussion in Part III.C.2 and notes 117 and 121.
242 See supra discussion in Part III.C.2 and notes 122 and 123.
243 See supra discussion in Part III.D.1.
244 See id.
245 See supra discussion in Part III and note 161.
246 See discussion of Zhang Biliang Case in Part IV.
247 See supra note 9.
248 See China Academics Say Laws are Needed to Protect Rare Fossils, Xinhua Eng. Newswire, May 13, 1998, available in 1998 WL 12155714.
249 See id.
250 See also the inclusion by the 1997 Criminal Law on crimes involving excavation, supra note 155.
251 This emphasis would probably be the choice of archaeologists and scientists. In his discussion contrasting the nationalistic approach to protection as opposed to the object-oriented approach, Merryman points out that archaeologists’ emphasis on site preservation is “quintessentially object-oriented.” Merryman, Two Ways of Thinking about Cultural Property, supra note 35, at 832.