[*PG185]THE CONFUCIUSORNIS SANCTUS: AN EXAMINATION OF CHINESE CULTURAL PROPERTY LAW AND POLICY IN ACTION
Abstract: This Article highlights the issues surrounding the international movement of cultural property by examining them in the context of fossil smuggling from China. The story of the Confuciusornis sanctus and a Chinese case concerning stolen fossilized dinosaur eggs serve as case studies for examination of the issues raised by the movement of cultural property between source states and market states. These cases also make vivid the deficiencies in the Chinese legal regime which is designed to protect and retain fossils in China. The Article concludes that the laws now in place are not adequate and that increased emphasis on non-legal measures to protect fossils would be more effective.
In the foyer of the New Mexico Museum of Natural History in Albuquerque lies the skeleton of a slight chicken-sized bird from northeastern China.1 The 130-million-year-old bird, known to paleontologists as Confuciusornis sanctus, has been on display since July 2, 1998.2 Its fossilized remains are among the most important recent paleontological discoveries made. For paleontologists, the Confuciusornis sanctus is one of the newest pieces of information about the early history of modern birds.3 For Chinese legislators and cultural relics professionals, this fossil and others like it are “cultural relics.”4
[*PG186] Such relics are the object of a bewildering array of regulations designed to protect not only the objects themselves, but also China’s various interests in them.5 In light of the large number of fossils discovered recently in China,6 and probably the loss of a great many of them (including specimens of Confuciusornis sanctus) to the international fossil market,7 China is presently undertaking to amend the current Cultural Relics Protection Law (CRPL)8 to provide more specific protection for fossils.9
The purpose of this Article is two-fold. First, it examines issues involved in the international cultural property movement using the story of the Confuciusornis sanctus and the smuggling of fossils in general as case studies. Second, this Article highlights the deficiencies of the Chinese fossil protection regime in order to suggest possible areas of reform and argue for increased focus on non-legal protection methods. Part I presents the story of the Confuciusornis sanctus, a valuable and scientifically significant fossil, as an example of the immense challenge faced by those who set out to protect fossils. Part II places this story in international context. Through China’s experiences with fossil smuggling, this Part examines the issues surrounding the movement of cultural property in general. It outlines both the forces that cause the movement of fossils out of China and other source nations and the various interests that call for their retention in their country of origin. Part III examines critically the group of laws [*PG187]and regulations that exist to protect China’s fossils and other cultural property. A close analysis of these provisions as they apply to fossils reveals flaws in China’s cultural property protection system. This Part concludes that as they are now, the various laws and regulations do not adequately protect fossils. In Part IV, a reported case on the theft of dinosaur egg fossils in Henan Province practically illustrates the patchwork of laws, guidelines, and announcements a court could use to analyze a case concerning fossil protection. The case, translated in the Appendix of this Article, dramatically demonstrates the flaws in China’s present legal framework. It points out some problems discussed in Part III and highlights possible regulatory and enforcement conflicts between local and national legal provisions. Finally, Part V turns from discussion of the laws that failed the dinosaur eggs in Henan and have so far not been able to prevent the loss of Confuciusornis sanctus specimens to argue that non-legal solutions with a focus on prevention and preservation are perhaps the answer.
The provenance of the Albuquerque fossil is largely a mystery.10 A former member of the museum’s board of trustees, Charlie McCarthy, saw the fossil for sale at the Mineral and Fossil Gallery, a shop in Santa Fe.11 He bought it for $18,000 and then donated it to the museum.12 Although museum scientists have verified the authenticity of the very well-preserved specimen, the museum has not been able to determine how or when the fossil came to the United States.13 The museum has been trying to trace its origins through fossil dealers but has gotten no further than the shop where it was purchased.14 The owner of the shop, Jack Burch, believes the dealer is out of the country, and Burch has been unable to contact him to obtain copies of Chinese government export papers. The fossil is on temporary display while the museum tries to work out its provenance.15 Rick Smartt, the museum’s director, says that if it is determined the fossil was smuggled out of [*PG188]China, the museum will either give it back to China or seek permission from the Chinese government to display it.16
Six museums in Japan have Confuciusornis remains, as does the Senckenburg Museum of Natural History in Frankfurt, Germany, which acquired its specimens in 1996.17 The Japanese museums paid between $5,000 and $15,000 for their birds.18 The first Japanese museum to acquire one, the Ibaragi Nature Museum, obtained it in 1993, although this specimen was not identified as a Confuciusornis until 1997 by a visiting British paleontologist.19 The traders who sold to the museums were Japanese.20 Japanese museum officials were assured the fossils were legal, but they did not receive any documents verifying their legality or authorizing export from China.21
None of the Japanese museums now displays the bird while they try to decide how to deal with the situation. The Education Ministry of the Japanese government has asked the museums to return the fossils.22 The Senckenburg was assured by its dealers that the fossils were legal.23 On the Chinese side, the State Administration for Cultural Relics (SACR) says the fossils are smuggled cultural relics.24 According to the magazine Science, “a press spokesperson says that SACR has never approved the export of Confuciusornis fossils, nor has it re[*PG189]ceived any requests.”25 An official of the SACR described the situation as “robbery” to the magazine.26
The importance of the Confuciusornis sanctus is clear and underlines the tragedy of the loss of such a great number of specimens. The bird was identified and named in 1995 by avian paleontologist Hou Lianhai of the Institute of Vertebrate Paleontology and Paleoanthropology in Beijing.27 Hou identified it from a specimen brought in by a local farmer.28 The creature is thought to have lived more than 130 million years ago and is surpassed in age only by Archaeopteryx.29 Hundreds of the birds have been excavated from beds outside Sihetun in Liaoning Province.30 The beds are described as “the most important site discovered this century.”31
One estimate maintains that 75% of the discovered Confuciusornis skeletons have been smuggled out of China where there is now a minority of fossils for research and exhibition.32 Another holds that as of 1996 there were only seven in institutions in China while there are several hundred on the open market.33 According to Xinhua, the [*PG190]official Chinese news service, almost 1,000 ancient bird fossils unearthed in the area have been sold secretly.34
The story of the Confuciusornis is not a singular tragedy. It is a small part of a narrative that chronicles a steady flow of cultural property out of China. The backdrop of the story is China’s interests in fossils—interests that explain why the retention of fossils is a sensitive issue. In general, China’s interests are defined by its position as a source of cultural property in the international cultural property market.
The international cultural property market divides into source nations and market nations. “Source nations” are art and artifact rich, but generally financially poor.35 “Market nations” are art and artifact poor, but financially rich.36 China is the classic source state: a [*PG191]developing country awakening at private and governmental levels to the economic potential of the antiquities trade.37 On the market side are the museums, dealers, collectors, tourists, and academics of market nations.38 Both sides have interests in protecting and preserving the objects. Where they differ is how to achieve the goal. The intersection of their attitudes toward cultural property gives rise to the laws that regulate its movement.
Following the laws of supply and demand, artifacts flow from source nations to market nations in a trade, mostly illicit, that has increased spectacularly since the 1970s and 1980s.39 Cultural property is generally not included in what developing countries like China want to trade, and despite the volume and potential value of a licit market, restrictions are common.40 These restrictions are “nearly universally” recognized as acceptable exceptions to free trade.41 However, despite the restrictions and against the best efforts of source nations and the prevailing attitudes of international law, the flow of cultural relics from source nations to market nations continues.42
While China fits generally into the international scene as a source nation, her particular interests can be divided into four categories: nationalistic, prestigious, cultural, and economic.
Cultural nationalism is a key value underlying retentive cultural property regimes like China’s.43 The nationalistic interest is the basic assumption informing such regimes, and it is a factor in almost every kind of cultural property movement.44 The nationalistic attitudes of source nations spring largely from the origin of the cultural property trade in the colonial era, a humiliating period of history for most source nations.45 The export of artifacts became a symbol of colonialism in general.46 In some specific cases, nationalism is stoked by the move of one very precious, symbolic object or collection of objects such as the Elgin Marbles,47 the Afo-A-Kom,48 or in the case of China, [*PG193]art objects now in the Victoria and Albert Museum in London and an extensive collection of Chinese art in the National Gallery of Scotland.49
A national interest exists in retention of cultural property because a rich body of cultural property enhances the prestige of a nation.50 In the case of the Sihetun site, Chinese researchers, “hope to parlay . . . global interest in the site into a more important role in future international collaborations” as well as global recognition.51 China is eager to protect paleontological digs that it feels are rightly excavated by its own scientists. According to a paleontologist from China’s Institute of Vertebrate Paleontology, “important achievements on Chinese fossils should be made by Chinese researchers.”52 A researcher from the Nanjing Institute of Geology and Paleontology emphasized that “China should have the proprietary rights of academic achievement.”53
Cultural property preserved within its country of origin has ethnological, historical, cultural, and educational worth.54 These values are enhanced for the source nation by the presence of the property within its borders. Presence in the source nation maintains a link between the artifact and its geographical and historical milieu.55
The Confuciusornis illustrates the critical importance of resident cultural property. A fossil without a provenance is of limited historical and scientific significance.56 A great deal of a fossil’s value for research purposes lies in its stratigraphic location. Clumsy amateur and illegal digging destroys the evidence of a fossil’s placement. In the Liaoning dig, some birds were found in groups, suggesting some sort of communal lifestyle.57 Birds taken completely out of context are stripped of this valuable information.58
The presence of an object in the source nation also develops and promotes domestic scholarship, education, and display. Confuciusornis fossils remaining in China have been featured in numerous exhibits in China that present their homeland’s ancient history to the Chinese.59 Discovery of the Confuciusornis has also created opportunities for Chinese paleontologists in research and publication.60
China also has economic interests in the retention of cultural property. Cultural property can be seen as a national resource to be exploited.61 For example, in the late 1970s, when the international trade in cultural property was at a high, China’s State Council saw control of cultural relics export as a way to raise needed foreign exchange.62 In general, resident, well-preserved cultural property lures tourists.63 The Forbidden City in Beijing and the terracotta warrior excavation site in Xian are perhaps the most well-known sites which have drawn tourists for years. In late 1998, a US$800,000 museum is expected to open in Beipiao, near the Sihetun site. The plans are to expose the strata where the birds were found as a tourist attraction.64
Cultural property also has economic value on an individual level. Individuals form the base layer of the illicit trade in cultural property.65 A Chinese farmer who turns up the skeleton of an ancient bird can easily make twice his yearly salary if he sells it on the black market.66 According to one official, the peasants dig the fossils to make a living but added that they would not do so if there were no commercial demand.67
On the other side of the cultural property stage stand the market nations. Their interests are defined in terms of economics and a kind of international idealism that demands protection of and access to cultural property.
Instead of a national patrimony, market nations claim interest in protection of an international patrimony.68 Internationalists contend that the flow from source states to market states puts the artifacts in the hands of those who are eager and able, both technologically and curatorially, to preserve them, thereby aiding preservation of a world heritage.69 This position is often raised in discussions of Chinese cultural property because of the lack of funds and curatorial training among Chinese researchers for cataloguing, displaying, and preservation.70
The market side argues that the trade in cultural property makes artifacts and the cultures that produce them more visible, known, and accessible to researchers, academics, and the public.71 To many proponents of this view it is better that the artifact be in a public collection than in storage or a private collection.72 The argument is persuasive when applied to China. First, China possesses a large number of cultural artifacts, many of which exist in duplicate,73 and many of [*PG197]which are in storage.74 On a basic level, such a situation would seem to call for sharing and dispersal rather than retention.
The market for cultural property in general is vast. It is “thought to be third only to drug and arms smuggling” and may even be in second place.75 In China, cultural relics are thought to be the “largest single class of item smuggled.”76 China’s potential as a future market is also immense.77 As mentioned, there is a huge supply of antiquities in storage and unexcavated. Thus, auction houses, dealers, and museum officials see China as “the final frontier for the art and cultural property trade.”78
Part of the international cultural property market is a healthy trade in fossils.79 As discussed above, Xinhua reports that 1,000 ancient birds from the Liaoning area have been secretly sold.80 Many of the Confuciusornis specimens that have appeared on the black market have gone to private collectors.81 Driven by the market, collectors focus on the rarity and aesthetics of a specimen.82 They do not want to [*PG198]see a drop in supply resulting from effective enforcement of protection measures.83
With strong interests in retaining its cultural property and faced with a massive outward flow of artifacts, the Chinese government has constructed a retentive regime that, despite its severity, has failed to protect fossils. The provisions are often vague and ill-suited to the protection of fossils and prehistoric archaeological sites. The main applicable laws, the CRPL and the 1997 Criminal Law, mandate strict control of relics wherever they are found. Though there are provisions designed as protective and preventive, the focus is on punishment, which necessarily occurs after the fossils have lost much of their value.
China’s broadest aspirations, as reflected in the legislation regarding cultural property protection, are found in the 1982 Constitution. Article 22 of Chapter One, General Principles, states that the state protects “important items of China’s historical and cultural heritage.”84 A confusing and overlapping group of laws and regulations promulgated by different legislative and administrative bodies implements this policy.85 The alleged illegal removal of the fossil now at the [*PG199]Albuquerque museum implicates a number of statutes and illustrates their flaws.
The most significant applicable laws are the 1982 CRPL and the 1997 Criminal Law.86 The CRPL, which was amended in 1991, outlines the policies, and the Criminal Law provides criminal enforcement. The CRPL plays a dual role: it provides the basis for administration of cultural relics and mandates their protection by criminal sanction. Other norms are promulgated by the State Council, and regulations can be issued by the Ministry of Culture (a ministry under the State Council) and the State Bureau of Cultural Relics.87 Customs regulations also aid in enforcement.88 Provinces, autonomous regions, and local governments also promulgate cultural property legislation that [*PG200]very often “mirrors” national legislation.89 Jin Zi-tong, a Chinese legal commentator who writes on cultural property, has criticized the myriad provisions, despairing of “the large number of relevant laws and regulations, the ill-organized legal system and the lack of co-ordination between the relevant legal provisions.”90
“Cultural property” is the legal term used to describe objects like the Confuciusornis sanctus. Cultural property is generally described as a collection of objects of historical, artistic, or scientific value that a nation designates as reflective of or important to its civilization.91 It is movable or immovable92 and need not be concrete.93 Although cul[*PG201]tural property is generally thought of in terms of art objects,94 it also includes “rare collections and specimens of fauna, flora, minerals and anatomy, and objects of paleontological interest.”95
China uses the term “cultural relic” rather than “cultural property.”96 This narrower term may reflect the status of cultural property in China as “property of limited circulation.”97 The definition found in Article 1 of the CRPL is inclusive and covers the elements discussed in the first paragraph of this section as they pertain to objects within the boundaries of the People’s Republic.98 The 1982 law includes relics with historical, artistic, and scientific value ranging from tombs and grottos to buildings and manuscripts.99 China also grants “the fossils of ancient vertebrate animals and paleoanthropoids which have scientific value” the same protection as cultural relics.100 The Confuciusornis sanctus, being a fossil of an ancient vertebrate animal found inside China and possessing scientific value, falls within the scope of the statute.101
The CRPL effectively brings all valuable fossils under state control. Chapter I of the CRPL outlines the scope of cultural property in China.102 The Confuciusornis sanctus, as mentioned, falls within its purview. The CRPL was promulgated by the Standing Committee of [*PG202]the National People’s Congress (NPC).103 It authorizes municipal, county, and provincial regulations for the management and protection of cultural relics and mandates that “governmental organs, public organizations and individuals” are obliged to protect relics.104 According to this chapter, “all cultural relics remaining underground” are owned by the state.105 By this provision, the results of unauthorized digging (the Confuciusornis sanctus potentially falls into this category) are stolen property. This designation can aid in the return of smuggled fossils from some market states.106 Finally, relics owned privately by individuals or collectives are protected by the state.107 Relics owners “must abide” by state regulations concerning protection and control of relics.108
Chapter III of the CRPL, Archaeological Excavations, consists of general administrative provisions for the management of archaeological sites.109 In general, these administrative controls reflect a concern with centralized control and the possibility of exploitation. According to this chapter, “[n]o unit or individual may conduct excavations without permission,” and any relics that are unearthed and not handed over to research institutions must be taken care of by local [*PG203]cultural administration units.110 “[N]o unit or individual may take them into its or his own possession.”111 According to this chapter, it seems that no archaeological excavation can proceed on the local level without state permission. Archaeologists must submit an excavation program to the state department for cultural administration and the Chinese Academy of Social Sciences for examination and approval.112 If the site is a major one protected at the national level, final approval of the State Council is required.113 Any find made during construction or “agricultural production” must be immediately reported to the local department for cultural administration.114 Finally, no foreigner or foreign organization can engage in archaeological work without special permission of the State Council, a national body.115
As mentioned, vertebrate fossils are within the scope of the definition of cultural relics in the General Provisions. However, prehistoric scientific sites are not specifically mentioned in Chapter II (Sites to be Protected for Their Historical and Cultural Value)116 or Chapter III (Archaeological Excavations).117 This omission is a potential problem for sites like the one where the Confuciusornis was found, particularly if the site does not otherwise merit state protection. Articles 10–13 of Chapter II and Articles 18–19 of Chapter III deal with site protection as it relates to construction projects.118 In these situations, the motives to ignore protection provisions that could slow down building are potentially strong. Arguably, such motives are more threatening to site types that are not specifically covered.
To protect qualifying sites, provinces, autonomous regions, and municipalities are given power to define the scope of protection, es[*PG204]tablish files and records, and establish special organs and personnel at each site “in light of different circumstances.”119 However, it is not clear which parts of which governments are in charge.120 Is it a cultural bureau made up of curators and scientists or made up of bureaucrats? Or are commercial departments in charge of sites that could be valuable for the tourist industry? The fact that fossils are barely mentioned may indicate that paleontologists are not involved in the decisions administering sites and relics most important to this field.
One of the rationales behind the strict administrative control of archaeological work was that relics ought to stay buried until China has the technology and expertise to carry out excavations without risking the relics.121 This rationale may be less applicable now than it was in the early 1980s. Chinese archaeologists now employ the most up-to-date techniques and have even succeeded in extracting DNA from a dinosaur egg.122 Potentially China could afford, if not now, then in the future, to be less stringent about centralized state administration of archaeological digs. The CRPL does not seem to provide the flexibility for this change.
Relics are divided into grades. In 1987 the Ministry of Culture published a circular, “The Ranking and Standard of Cultural Relics,”123 to provide guidance in determining grade for purposes of the CRPL. This system largely repeats the definitional language of the CRPL.124 Grade One relics are symbolic of Chinese culture and rare; Grade Two have “important” historic or scientific value, but are “widely found;” Grade Three are of lesser importance and include “important relics ‘with certain defects’.”125 In 1992 the State Bureau of Cultural Relics promulgated the Detailed Rules for the Implementation of the Law of the People’s Republic of China on the Protection of Cultural Relics [*PG205](Detailed Rules).126 These rules divide relics into “precious” (which includes Grades One, Two, and Three) and “ordinary.”127 It is important to note that this essentially administrative process of grading can have repercussions for criminal penalties.128 In the case of stolen relics, grading occurs when the relics are seized.129
The governmental levels at which objects and sites are to be protected are also unclear. Chapter II, Article 7 reads “Cultural relics . . . shall be designated as sites to be protected for their historical and cultural value at different levels according to their historical, artistic, or scientific value.”130 The most valuable relics are to be protected by the state, while provinces, autonomous regions, and municipalities have charge of the less valuable relics. There is no guidance, however, on how to determine this. The statute calls for the approval of various government levels based on the relic’s value.131 The state department for cultural administration “shall select” from among the sites protected at different levels those significant enough for direct state protection.132
The efficacy of this arrangement is difficult to judge because of the number of potentially competitive values that attach to cultural property.133 One result of subjective centralized decisions could be careful protection of a site of questionable academic or historical value, but high political or economic value.134 In the case of fossils, [*PG206]sites with high commercial and prestigious potential, like the one in Liaoning, could be better protected than less spectacular or publicly “useful” finds.
The CRPL allows for awards and penalties. Individuals will be given “appropriate moral encouragement or material awards” for implementing the policies, protecting and saving cultural relics, fighting crime, donating privately owned relics, turning in found relics, and long-time service in the field of cultural relics.135 Despite the list of enticements, there is actually very little economic incentive to turn in a fossil: what a donor might be paid by the state for the relic would in most cases be a fraction of the specimen’s black market value.136
Possible penalties are divided into administrative penalties (Article 30) and criminal punishments (Article 31).137 These articles were amended in 1991.138 The theft of the Confuciusornis violates Article 31, section 2 which forbids “hiding cultural relics discovered underground” and failing to report and deliver them to the state.139 Administrative penalties include warnings, fines, restitution (in cases of damage to the relic), and seizure of the relic.140 Individuals or organizations that buy and sell without approval will have their illegal earnings confiscated along with the relic.141 The relic will be confiscated by [*PG207]the industry and commerce departments by their own initiative or as suggested by the cultural administration departments.142 These articles reflect a new emphasis on cooperation between commerce and industry, on one hand, and cultural administration, on the other, not seen in the original law.143 However, the means of communication is not made clear, nor is it clear which department keeps the fines.144 Presumably the seized relics are returned to the museum, site, or department from which they came.
The Detailed Rules provide for administrative fines for the offenses listed in sections 1 through 8 of Article 30.145 The penalties are apparently to be distinguished by degree of seriousness of the circumstances, but there is no definition of “seriousness” given.146
Criminal penalties are authorized in Article 31 for those who allegedly caused the exit of the fossil from China. The article stipulates that a person stealing, smuggling, harming, and destroying sites of cultural relics will be “investigated for criminal responsibility according to law.”147 Presumably, this phrase refers to the Criminal Law.148
Articles 324–29 of the 1997 Criminal Law are concerned with “Crimes of Obstructing Cultural and Historical Relics Control.”149 Under this set of articles the crimes are the same as those in the CRPL, ranging from damage and destruction of cultural relics150 to privately selling,151 selling for profit,152 selling or giving by a museum,153 and digging up ancient tombs and remains.154 It is not entirely clear when the CRPL Article 30 provisions apply and when the Criminal Law applies. One commentator opined that when the offense is in both laws, the more specific provision should apply.155 Read together with the provision of the CRPL that extends the protection given to cultural relics to fossils of vertebrate animals, these provisions apply to a relic like the Confuciusornis sanctus.
Articles 324–27 speak of cultural relics in general. Only Article 328 refers specifically to fossils.156 It stipulates that the illegal excavation of “ancient human beings or fossils of vertebrate animals which are protected by the state and have scientific values” is punished under the article concerning ancient tombs and remains.157 Although the specific inclusion of fossils is a step forward, as with the CRPL, the provision is vague. “Illegal excavation” is not defined; presumably it refers to excavation without the permission required under the CRPL.158 There is also no guidance on what “scientific values” an object must possess to be considered a relic. Does it mean duplicates of fossils are not protected because their value is diminished by the fact that predecessor discoveries have already provided the scientific in[*PG209]formation needed and desired by China? Does it mean a very badly preserved or broken fossil could be taken out of the country? What if a fossil has been “improved” or “repaired” by its finder so that its scientific value is destroyed?159 As in the CRPL, it is also unclear who has the power to decide which relics have “scientific value.”
The punishments meted out are more explicit in the Criminal Law than in the penalties provisions of the CRPL and include minimum and maximum prison sentences, fines, criminal detention, confiscation of property, or death.160 The punishments are dependent upon the “seriousness”161 of the situation and the grade of the relic as precious.162 Article 328 is the only article that specifies what kinds of situations are serious. The list of what constitutes a serious circumstance in Article 328 includes illegally digging ancient remains or tombs protected by the state, being the ringleader of an organization that engages in illegal digging, engaging in repeated illegal digging and robbing, or illegally digging and robbing precious relics and causing serious damage to the relics.163
Thus, under these provisions, perpetrators can receive the death penalty for illegally digging and robbing a fossil site if the circumstances are serious.164 Prior to the 1997 Criminal Law, the death penalty was awarded under the Decision only for the economic aspects of cultural property crimes.165 This may signal a shift from concentrating primarily on halting the flow of relics once they have entered the [*PG210]market to halting them at their source. This is effective for fossil protection because much of their non-economic value is lost when they leave the ground.166
The theft of the Confuciusornis sanctus illustrates the potential practical application of the provisions. Of the situations listed in Article 328, two are most likely applicable to the Confuciusornis: (1) “illegally digging” fossils that are protected by the state or “are under the protections of the national or provincial governments’ institutions of culture and history,” and (2) “illegally digging” and “robbing” any fossils “thereby causing serious damage to the cultural and historical relics.”167 The first provision seems to apply to fossils in state-recognized digs or in museums, while the second applies to those an individual might dig on his own. Provisions 328(2) and 328(3) mandate the higher penalties for recidivists and those involved in organized illegal excavation.168
However, the penalties may be dramatically greater. Assuming the bird was illegally excavated and possesses scientific value, at the very least the perpetrators could go to prison or suffer public surveillance or criminal detention for three years.169 They may have to pay a fine or be subject to confiscation of property.170 At most, they would be executed.171
“The Crime of Encroaching Upon Property,” another article in the Criminal Law, also applies to crimes involving cultural relics.172 Article 264 provides that “those committing serious thefts of precious cultural relics . . . are to be given life sentences or sentenced to death, in addition to confiscation of property.”173 This provision preserves [*PG211]the death penalty for theft of cultural relics as provided in the Decision.174 Article 264 suffers from the same difficulties as other provisions. “Serious” is a subjective term, as is “precious.” Furthermore, how “theft” fits in with Articles 324–29 is not clear. None of the Chapter IV provisions, with the exception of Article 328 in the context of robbing excavations, mention theft. Is Article 264 meant as a kind of supplement to the sale-oriented Articles 325–27, or vice-versa?
In order for the crime to receive the heightened punishment of Article 264, the relic must be “precious.”175 “Ordinary” relics are those dated after 1795 and without historical, artistic, or scientific value.176 According to the Detailed Rules, relics are divided into “ordinary” and “precious.”177 Fossils pre-date 1795. Does this make them all precious?178 The distinction is important here because of the significant sentencing differences. Theft of “ordinary” relics falls under Article 263, the general provision on theft, where punishment is three to ten years in prison and a fine.179 Fossils might be made to fit these provisions more effectively with some separate clarification of the grading of fossils as opposed to other relics.
Part 2, Chapter III, Article 151 of the 1997 Criminal Law, “Crimes of Undermining the Order of Socialist Market Economy,” covers smuggling certain kinds of goods.180 Paragraph 2 disallows smuggling [*PG212]“prohibited cultural relics.”181 The punishment is imprisonment of over five years with a fine; “less serious offenses” attract punishment of less than five years with a fine.182 “Extraordinarily serious” offenses are punished with “life imprisonment or death, with forfeiture of property.”183 Regarding fossils, the same criticisms of vagueness apply to these provisions as to those previously discussed. The specific inclusion of cultural relics in the smuggling provisions, however, is crucial to the protection of and retention of relics within China. Most relics are destined to be smuggled out of the country. The question of effective enforcement of the smuggling provisions relating to cultural relics is discussed below in Part V.A.
It is not clear precisely how the Chinese legislation discussed here would apply to a stolen Confuciusornis. However, a recent case may provide guidance. A case awarding punishment for the illegal digging of fossilized dinosaur eggs was decided in 1996184 and selected by the Chinese Practicing Law Institute to be included in the Selective Compilation of the People’s Court’s Cases, which reprints cases tried by various levels of courts. Strictly speaking, the case is not precedent because China does not formally follow precedent,185 but because of its inclusion in a selective compilation it can be used as a rubric for how laws might be applied.186 A translation of the case is included in the Appendix.
The case is significant because it demonstrates the flaws in China’s present legal framework. It vividly makes clear the patchwork of laws, guidelines, and announcements a court could use to analyze a case about fossils. The dinosaur eggs case highlights possible regula[*PG213]tory and enforcement clashes between local and national legal provisions and points out the difficulties inherent in the lack of a protection law that is specific to fossils. The facts of this case also show the deficiencies of legal methods of protecting fossils—most basically, the legal system did not intervene until after the eggs were dug up (probably by amateurs though the facts of the digging of the eggs are not covered by the case) and carried away in the back of a truck. Had the crime been thwarted on site, more of the various values of the fossilized eggs would have been preserved intact.
In the Xixia County People’s Court, three defendants were accused and convicted of “speculation and profiteering” on the purchase of 156 fossilized dinosaur eggs.187 The defense’s main argument was that the defendants had not stolen cultural relics.188 First, they contended that “three times successively the state announcement of the scope of cultural relics did not list fossilized dinosaur eggs as cultural relics.”189 Second, the defendants maintained that despite the fact that their actions occurred after the county promulgated an Announcement Concerning the Illegal Excavation, Buying and Selling, and Smuggling of Fossilized Dinosaur Eggs (Announcement), the theft of the dinosaur eggs was not a crime because the province and the state had not determined the status of fossilized dinosaur eggs as cultural relics.190 The crime allegedly occurred on November 11, 1993, although the State Cultural Bureau did not reply to the Henan Province Cultural Relics Bureau on the status of dinosaur eggs until December 16, 1993.191 Further, the defense maintained that the county’s Announcement was not law and could not be used as a “basis for declaration of guilt or measurement of penalty.”192
The court identified the main issue of the case as whether or not fossilized dinosaur eggs are cultural relics.193 Significantly, in finding that the eggs were cultural relics, the court did not rely on the county circular to establish the status of the eggs, but argued they were in[*PG214]cluded under the CRPL.194 The CRPL definition includes only the fossils of humans and vertebrate animals, a category that does not include fossilized eggs.195 Because of this, the court had to wedge the eggs into the definition by arguing that because dinosaurs are a “huge branch of ancient vertebrate animals,” their fossilized eggs are also protected by the law.196 By this reasoning, the court asserted the centralized control of the CRPL despite its vagueness and a definition ill-suited to include fossilized eggs. At the same time, the court seemed to discourage, by ignoring it, the effectiveness of more specific measures tailored to local conditions. This raises the question of the efficacy and enforceability of local regulations. After determining that the fossilized eggs did fall within the statute, the court applied Article 31 of the CRPL which calls for criminal responsibility for “serious” cases of speculation in cultural relics.197
Having used the CRPL to define the relics and establish their sale as a crime, the court turned for guidance to the Explanation, which mandates punishment according to the CRPL, the Criminal Law, and the Decision.198 It then followed the guidelines in the Explanation, citing specific provisions, and applied punishment based on the number and grading of the relics.199 Two other factors influenced the sentences: the two defendants were named ringleaders, and the crime was a “joint” crime.200 The two ringleaders received higher sentences.201 The fact that it was a “joint” crime is mentioned in the last sentence as a correct basis for punishment.202
This case shows that even a new, clearly drafted fossil protection law may not be sufficient to solve the problem. The problem of conflicting and overlapping local and state regulations is likely to remain. More significantly, however, is the backward-looking character [*PG215]of such laws to date; for the most part, the laws protecting cultural relics focus on the relics once they have been stolen, damaged, or have entered the black market. Fossils clearly illustrate the importance of this point. As opposed to an after-the-fact, punishment-based system, the significant value of fossils in situ demand a preventative scheme and the administrative organization to enforce it. Prevention is perhaps best accomplished by non-legal responses to the fossil loss problem.
“Theft, smuggling and illicit traffic have bedeviled cultural relic protection in China since the early 1980s.”203 Despite improvements in the laws and harsh penalties, cultural relics smuggling still thrives in China.204 Numbers for an illicit market are impossible to know; however, according to the China Daily, Chinese customs seized at least 11,200 items by inspecting passengers’ luggage last year.205 In addition, the Chinese police solved 580 cultural property related criminal cases and seized 2,962 relics.206 One official with the Ministry of Public Security noted an increase in tomb robbing since May of 1997.207 “Antiquities are thought to be the largest single class of item smuggled out of the P.R.C., at least in terms of monetary value.”208
[*PG216] The route through Guangdong and neighboring Hong Kong and Macau is historically the most common; relics arrive on small cargo boats, fishing boats, trucks, by individual courier, planes, and in shipping containers.209 An official with the Ministry of Public Security admitted that the Chinese police’s present approach is passive and that smuggling organizations have become better organized and have greatly reduced the time between looting and smuggling.210 Better organized smuggling operations have made it more difficult for Chinese police to recapture the relics before they leave the country and have increased China’s dependence on foreign enforcement for return of the items.211
The Confuciusornis’ presence outside China confirms enforcement problems. The Chinese State Administration for Cultural Relics says the fossils are smuggled cultural relics, and “a press spokesperson says that SACR has never approved the export of Confuciusornis fossils, nor has it received any requests.”212 The dealer who sold the fossils to four Japanese museums said the fossils were mailed to him from China without documents.213 Another dealer said that over the course of more than a dozen trips to take fossils out of China, he has never been asked for any documents authorizing his transport of them.214 The Albuquerque bird came from an international fossils dealer whose name the retail fossil shop owner would not reveal.215 The shop owner says he has no reason to believe the fossil left China illegally or entered the United States illegally, but he has been unable to contact the dealer to get copies of the Chinese export papers because the [*PG217]dealer has left the country.216 The Japanese museums similarly have not been able to obtain authorizing documents.217
In the face of the continuing illegal outflow of relics, characterized by one article as a “surging trend,”218 China has looked to non-legal solutions. Cultural relics smuggling is part of the anti-smuggling campaign that began in 1998.219 In June 1998, a seminar was organized by the State Bureau of Cultural Relics and sponsored by UNESCO to focus on fighting illicit traffic.220 At least one province, Shanxi, has launched its own campaign focussing on the most common smuggled goods, one of which is cultural relics.221
In conjunction with the anti-smuggling campaign, Premier Zhu Rongji gave a speech in July 1998. Some of the root causes of smuggling he pointed out also apply to cultural relic protection: corruption and weak law enforcement.222 These causes potentially can affect a relic like the Confuciusornis at many levels. Many relics initially enter the market through corrupt museum officials or guards.223 Corrupt customs officials and other dishonest law enforcement workers [*PG218]can facilitate a relics movement through the illicit market.224 Weak law enforcement could result in the levying of fines and use of administrative penalties rather than the criminal prosecution mandated by the statutes. If the exhortations of the anti-smuggling campaign are taken to heart, the possibility of corrupt officials receiving the maximum punishments for the smuggling of such a specimen as the Conficiusornis increases.225
Because of the apparent efficiency of the illicit fossil trade, source controls that aim to prevent the fossil from ever entering the market will perhaps be the most effective measures. If the emphasis on illegal digging and robbing in Article 328 of the new Criminal Law is indicative, China may be looking to this kind of preventative measure rather than merely market controls to protect excavation sites.
In an effort to protect dinosaur egg beds in Hubei, provincial officials have set up a fifteen square kilometer sealed off protection zone around the eggs.226 A similar area exists to protect fossilized eggs in Guangdong province where all construction projects in the area require the approval of the Cultural Relics Protection Project.227 Similar measures have been taken in Liaoning where the fossil beds have been designated as a Fossil Birds Preservation Zone (Zone), a forty-six square kilometer region south of the town of Beipiao.228 Zhao Yibing, a town official, has been named administrator of the Zone and is in charge of managing the area.229 He employs five full-time guards who provide around-the-clock protection against thieves.230 However, this scheme depends on the honesty of the guards, their ability to police a large area, and the necessary continued funding.
China also uses education in its attempt to defeat the illicit market in cultural property. These efforts take two forms: education on the law and on the objects smuggled. General legal education is part of China’s larger attempt to disseminate knowledge of law in general,231 but education about the objects smuggled is particular to the illicit cultural relics trade.232 Most objects in the illicit market only have economic value to those who place them there. The aim of education about the relics is to increase awareness and appreciation of the other values of cultural property. It is in part for their non-economic values that China wants to retain the relics.
Museum exhibitions indirectly help in this kind of education. The birds from Liaoning were exhibited in Beijing in an exhibition entitled “Exhibition of Primitive Bird Fossilized Treasures from Western Liaoning.”233 Fossilized dinosaur eggs have been described by Guangdong officials as “rounded stones” to help people identify relics.234 Exhibitions also serve to educate citizens about the success of cultural relic protection. An exhibition of antiques (recently recovered from a British smuggler), entitled “Achievements Against the Smuggling of Cultural Relics,” were exhibited in Beijing.235 The exhibition had a patriotic undertone in addition to being about art and [*PG220]history. It operated as a demonstration of China’s legal success locally and internationally.236
Educational efforts also extend to publicity of the laws and possible punishments. For instance, Hubei province authorities announced that violators will be prosecuted. They also encourage locals to turn in finds: many of the eggs found near Heyuan city in Guangdong province have been turned over to the government.237 At the Liaoning site, Zhao Yibing has participated in efforts to educate local farmers to protect and identify fossils they find in the ground and to make sure farmers know that those who trade already excavated fossils “will be convicted according to the law.”238
The illegal presence of so valuable a specimen as the Confuciusornis sanctus in Albuquerque demonstrates the deficiency of China’s fossil protection scheme. China has been unable to stem the flow of such specimens to market states. The present system does not effectively protect fossilized objects or China’s economic, nationalistic, cultural, or prestige interests.
Despite the broad policy aspirations of the 1982 CRPL,239 the confusing and overlapping group of laws and regulations that implements it has not served fossils well. The section on administration of archaeological excavations does not specifically mention pre-historic sites, and it is difficult to determine whether fossil experts are involved in making decisions about site protection and management.240 Further, the statute does not seem to have the flexibility to accomodate China’s rapidly improving field of archaeology.241
[*PG221] The 1997 Criminal Law improved the situation by consolidating most existing offenses in a more extensive section devoted to cultural relics.242 However, these provisions and others elsewhere in this statute suffer from problems of definition as to relic value and seriousness of criminal situations.243 This difficulty is significant because potentially harsh punishments are awarded on the basis of the definitions.244
Both the CRPL and the 1997 Criminal Law use such imprecise terms as “precious,” “ordinary,” “serious,” and “extraordinarily serious” that do not satisfactorily define the crimes involving fossils or the grading of fossils. The Henan dinosaur eggs case provides some guidance on the application of the laws but demonstrates difficulties even in defining the fossilized eggs as relics and reveals a conflict in the application of local and national laws.245
In light of the large number of significant fossils discovered in recent years and China’s failure to protect them, the National People’s Congress is in the process of amending the CRPL to better protect fossils.246 The Henan dinosaur eggs case and the problems of protecting the Liaoning birds (which include Confuciusornis sanctus) prompted Chinese scholars from the Chinese Academy of Sciences to appeal to the government for greater legal protection to prevent improper excavations.247 Their recommendations include designation of certain departments and research institutes to handle digging permits and designating a committee of the Ministry of Science and Technology to coordinate fossil searches and excavations.248 The participation of paleontologists and other scientists in this effort, as well as the focus of their proposals on fossils, is heartening.249
A law with a more object focused approach—that is, one that emphasizes preservation of the object itself instead of exclusively the values that attach to it—will perhaps lead to the successful protection of fossils on site, before they enter the illicit market.250 Such an ap[*PG222]proach would have to enhance current on-site control and protection arrangements and public education efforts. Successful on-site protection will best preserve the fossils and their values for both China and the world.
The Case of Zhang Biliang and Others Selling for Profit and Speculating on Fossilized Dinosaur Eggs
[Case Details]
Defendant: Zhang Biliang, male, age 30, from Hunan Province, Shaoyang City, is a worker at Shaoyang City Shazipo car repair workshop, arrested August 12, 1994.
Defendant: Liu Dezhi, male, age 32, from Hunan Province, Shaoyang City, is a worker at Shaoyang City Baishouting Rubber Factory, arrested August 12, 1994.
Defendant: Zhang Chunling, female, age 29, from Henan Province, Xixia County, peasant, arrested November 15, 1994.
On November 25, 1993, defendants Zhang Biliang, Liu Dezhi, and Zhang Chunling’s husband Ren Wenji (who is still at large), met in the Great Wall Hotel in Nanyang City, Henan Province. They illegally planned that Ren Wenji would return to the countryside around Yangcheng, Xixia County to organize the purchase of an unspecified number of fossilized dinosaur eggs, each egg at a price of 200–300 yuan, once back in Nanyang they would then according to the quality [of the eggs] negotiate specific prices. Zhang Biliang and Liu Dezhi at that time paid Ren Wenji the agreed price of 2,000 yuan. After Ren Wenji returned to Yangcheng, with the help of his wife Zhang Chunling and his younger brother Ren Wenzhuo (who is still at large), he organized the purchase of 156 fossilized dinosaur eggs. On the evening of November 27, Ren Wenji went from Nanyang to Nancheng in a rented “131” cargo truck, the same night, Ren Wenji, Zhang Chunling and Ren Wenzhuo escorted the fossilized dinosaur eggs by truck to Nanyang. By way of a county toll station in the countryside, the public security organs intercepted and captured them, and ferreted out and seized 156 fossilized dinosaur eggs. Afterward, the defendants Zhang Biliang and Liu Dezhi fell into the net in Nanyang.
Through the Henan Province Cultural Relic Appraisal Organization the following were appraised: of 156 seized dinosaur eggs, 148 were state grade three cultural relics, and eight were ordinary cultural relics. These 156 fossilized dinosaur eggs have been moved to the Xixia County Cultural Relic Protection Administration Collection.
[Trial]
The Xixia County People’s Procuratorate, because the defendants Zhang Biliang, Liu Dezhi, and Zhang Chunling engaged in speculation and profiteering, has raised a prosecution in the Xixia [*PG224]County People’s Court. The defendants Zhang Biliang and Liu Dezhi, as to the facts of the crimes with which they have been accused, have no objection. The defendant Zhang Chunling defends herself: “It is true that I was caught in the truck that was hauling the fossilized dinosaur eggs, but I did not participate in buying the dinosaur egg fossils, that night I was just along to go to Nanyang for fun.” Counsel of the three defendants all noted that the actions of the three defendants occurred before a Henan Province government announcement and a State Cultural Bureau affirmation of the grade of fossilized dinosaur egg relics, hence their behaviour did not constitute a crime.
The Xixia County People’s Court, through public hearing of the case, concluded that the defendants Zhang Biliang, Liu Dezhi, and Zhang Chunling, with reaping profits as their goal, illegally trafficked in state grade three fossilized dinosaur egg relics, and that their behaviour constituted the crime of speculation. The number of the grade three state cultural relics the three defendants illegally trafficked in reached 148. This case is related to the cases of the illegal traffic in many same grade cultural relics, and according to the Highest People’s Court and the Highest People’s Procuratorate regulations Explanation of Several Questions Concerning the Applicable Law in Handling Cases of Stealing, Illegally Recovering, Dealing in, and Smuggling Cultural Relics (hereinafter, Explanation), ought to be punished as if it were illegal trafficking in grade two cultural relics. This is a joint crime. Defendants Zhang Biliang and Liu Dezhi who brought a large number of fossilized dinosaur eggs from Hunan to Nanyang are ringleaders, and ought to be heavily punished; the defendant Zhang Chunling who assisted the purchase and transport of the fossilized dinosaur eggs, is an accessory, and can be punished more lightly than the ringleaders. The argument of Zhang Chunling who defended herself saying she had not participated in the sale or transport of the fossilized dinosaur eggs does not tally with the facts; the arguments of counsel who believed that the behavior of the three defendants does not constitute a crime cannot be established, and this court cannot adopt it. Following the The Criminal Law of the People’s Republic of China, Article 118, Article 22 clause 1, Article 23, and Article 24, on July 27, 1995 the court handed down a criminal punishment. Because of the crime of speculation and profiteering the sentences were divided: defendants Zhang Biliang and Liu Dezhi each received a six year sentence, and defendant Zhang Chunling received a four year sentence.
After pronouncement of the verdict, the three defendants did not raise an appeal, and the People’s Procuratorate also did not appeal the case.
Since 1990, “Xixia County Fossilized Dinosaur Eggs” have attracted the extensive interest of the scientific world. Dinosaur eggs are seen as the scarce fossils of ancient animals, and are important objects which bring to light the mystery of the existence of dinosaurs. They are a way for men to understand geological history and environmental information; they are also important scientific and cultural artifacts for the world. In order to protect scientific and cultural artifacts belonging to all mankind, Xixia County People’s Government, on June 13, 1993, promulgated Announcement Concerning the Illegal Excavation, Buying and Selling, and Smuggling of Fossilized Dinosaur Eggs (hereinafter Announcement) forbidding any unit or individual to privately dig, buy and sell, or smuggle fossilized dinosaur eggs. On December 16, 1993, the State Cultural Bureau in Cultural Relic Document Number 1122 officially replied to the Henan Province Cultural Relic Bureau unequivocably pointing out that “fossilized dinosaur eggs ought to fall within the scope of the state cultural protection,” “relatively intact fossilized dinosaur eggs may be tentatively categorized as grade three or higher cultural relics,” and “as to private excavation, selling, and smuggling fossilized dinosaur eggs should be given severe punishment.” On December 28 of the same year, the Henan Province People’s Government promulgated the Announcement Concerning Striking Hard Against Criminal Activities of Illegal Excavation, Selling, and Smuggling of Fossilized Dinosaur Eggs, which indicates that “any participation in activities inciting, inducing illegal excavation, or selling fossilized dinosaur eggs are included in the scope of criminal behaviour. . . .” As to the criminals, we must move to adjudication, and, according to The People’s Republic of China Cultural Relics Protection Law and the Highest People’s Court and the Supreme People’s Procuratorate Explanation, bestow severe sanction.
In the course of hearing this case, counsel did not raise an objection to the facts of the case. However, they raised [the point that] because the actions of the three defendants in buying the fossilized dinosaur eggs occurred before November 28, 1993, and at that time the fossilized dinosaur eggs were not considered cultural relics, therefore, their behaviour did not constitute a crime. Their reasons are: (1) three times successively the state announcement of the scope of cultural relics did not list fossilized dinosaur eggs as cultural relics; (2) not until December 16, 1993, did the State Cultural Bureau in Cultural Relic Document Number 1122 of 1993, officially reply to the Henan Province Cultural Relics Bureau that fossilized dinosaur eggs are listed as cultural relics, and the behaviour of the three defendants [*PG226]happened before this official reply; (3) the Xixia County People’s Government and the Henan Province People’s Government promulgated Announcement is not law, and cannot be used as a basis for declaration of guilt or measurement of penalty. We believe that these kinds of defense theories cannot be sustained. The focal point of this controversial case is whether or not fossilized dinosaur eggs constitute legal cultural relics. Through examination of the November 19, 1982 People’s Republic of China Cultural Relics Protection Law, article two, section three stipulates: “Fossils of ancient vertebrate animals and ancient anthropoids having scientific value receive the same state protection as cultural relics.” Dinosaurs are a huge branch of ancient vertebrate animals, thus it can be inferred that fossilized dinosaur eggs ought to be categorized as cultural relics which are protected by the law. Article 31 expressly provides that speculation and profiteering in cultural relics is a serious circumstance; (we) ought to investigate criminal responsibility according to law. On November 27, 1987 the Supreme People’s Court and the Supreme People’s Procuratorate in the fourth section of the Explanation: “Illegally managing (including purchase, transport, reselling, and profiteering) cultural relics in a serious situation which constitutes a crime, is punished according to the crime of speculation and profiteering, along with articles 117 and 118 of the criminal law, and the first section, article one of the State Council’s regulation, Decision. Illegal management of grade three relics is punished by no more than three years prison sentence or supervision and also may be punished by a fine or confiscation of property; illegal management of grade two cultural relics is punished by no less than three and no more than ten years imprisonment, and can be punished with confiscation of property; . . . . In a case of illegal management where every relic is higher than grade three or there are many instances of illegal management of the same grade of relic, for the measure of punishment consult the Explanation, section one, article three.” Section one, article three of the Explanation reads: “If in one case the number of stolen relics of the same grade is relatively large, and the situation is serious, it can be punished according to the measure of punishment for relics one grade higher.” In this case, of the 156 fossilized dinosaur eggs the three defendants resold at a profit, 148 were grade three relics, (we) ought to firmly believe that many instances of reselling grade three cultural relics at a profit, according to the regulation, Explanation (promulgated by the Supreme People’s Court and the Supreme People’s Procuratorate), will be punished as if they were grade two relics. Xixia County People’s Court, according to the criminal facts and situation of each defendant, along [*PG227]with their roles and functions in the joint crime, was right in convicting them of the crime of speculating and profiteering and setting their punishments.
(Case supplied by: Henan Province Xixia County People’s Court
Editors: Xixia County People’s Court, Zhang Shiwen, Sun Huaimei, Ren Chengning
Responsible editor: China Practicing Law Research Institute, Wang Guanqiang)
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).