China and Cultural Property: Who Owns the Past?
A Panel Discussion

Panelists
Magnus Fiskesjö, Cornell University
James J. Lally, J. J. Lally & Co.
Nancy Murphy, WaterMoon Gallery
Marc F. Wilson, Nelson-Atkins Museum of Art

Moderator
Justin Hughes, Benjamin N. Cardozo School of Law

Summation
Jo Backer Laird, Christie’s Inc.

Asia Society, New York City - April 3, 2006

VISHAKHA DESAI: Good evening, and welcome to the Asia Society. My name is Vishakha Desai and I am the President of the Asia Society. It’s a great pleasure to see so many of you here this evening. I know that it says a lot about the topic at hand. We are delighted to present this very special program on China and Cultural Property: Who Owns the Past?, in conjunction with the Benjamin N. Cardozo School of Law and American Council for Cultural Policy. Before I actually go any further I should say that, indeed, this is a topic that’s very much on everybody’s mind. Lots and lots of articles have been written recently, not just in the major press but also other places. And it seems to me that one of the things that’s happened with this topic has been that partly we’ve gotten ourselves in a very binary situation. In one camp there are people who say that nothing should leave the country of origin and in the other camp there are people who say free trade. We might as well be in WTO. It’s that kind of a heated discussion. But I think that it’s fair to say that the issues to be discussed this evening are very complex and it does impact diverse constituencies that work with, or and on cultural heritage policy. I'm delighted that we’re working with the Cardozo Law School because I think that there is something about the law and something about how we appropriate and approach this law that also needs to be discussed as we go forward. I should also say that the topic and issues are indeed complex because there are many points of view. And no one panel, no one publication, no one speaker can actually address all of them. So, first and foremost, I want to say that, in fact, this is one in a series of conversations that we all must have. Our distinguished panel this evening will are part of a forum for dialogue that will deepen our understanding of the issues at hand through both the articulation of different points of view, but also possibly different approaches. I was just mentioning to a number of friends and colleagues that when you get yourself into a binary situation you actually don’t think about a third way, a possible new way, to articulate this issue of the past, cultural patrimony, objects, ownership and think whether there is something about stewardship. We should look at long term collaborative approaches, the kind of approaches that have been successful in other countries. And I should say that this is one of the series of conversations that Asia Society has organized in the past and we will organize again. Some of you were here with us almost two years ago when we did a panel called Beyond Bamiyan: Will the World be Ready Next Time?

Today we will focus on China, particularly because after Italy, China has actually taken this issue forward. The Chinese government has asked the State Department to look at some of the issues and change the law, since Chinese cultural property objects are coming into this country. So it feels very timely that we look at China, particularly with this idea of who owns the past and issues around cultural property as we go forward. And I also feel that, let’s look at this as a discussion, not the discussion and let us look at it as a way to approach this material. Here at the Asia Society I feel that this is exactly the kind of panel that we do well and we must do, because as many of you know, we are very much a three dimensional institution, combining arts and culture, policy and business and education. So this is as much about education as it’s about combining business of art and art of business, as we also think about the policy dimension of this topic. This is our fiftieth anniversary and we have a very exciting series of events and programs and exhibitions, performances that we have planned throughout – not just in New York but at our centers world wide. And we do hope that if you’re not members already that you will join us as we get ready for the next fifty years of this institution. I want to take this opportunity to urge you to join, pick up our brochures, check out our website and support our global activities. I’d like to thank Dean David Rudenstine of the Cardozo Law School and Ashton Hawkins of the American Council for Cultural Policy for their support and cooperation for presenting tonight’s program. As some of you know, this program is also partly to celebrate a number of publications that have come out recently. One is called Who Owns the Past? Cultural Policy, Property and Law, which is edited by Kate Fitz Gibbon, and another book called Art and Cultural Heritage: Law, Policy and Practice, which is edited by Barbara Hoffman. Both of these books will actually be available at the reception after the program is over in our main lobby.

The format for this evening, guided by our moderator Justin Hughes, will be a series of questions for the panelists, a discussion and at times, possibly a debate amongst them. And I have no doubt that’ll happen. Then we’ll have a summation by Jo Backer Laird. We are handing out the audience questions throughout the evening and ask that you legibly write your questions on the index card handed out earlier and pass them through the aisles where they will be collected and given to Justin, who will then try to answer as many of those questions with our panelists as possible and as the time permits. And now it’s my pleasure to introduce Ashton Hawkins, a good friend and President, American Council for Cultural Policy and Chairman, Alliance for the Arts. As you know, Ashton also was at the Metropolitan Museum of Art for many years where he was Executive Vice-President and Council to the Trustees until he retired in 2001. Please join me in welcoming Ashton Hawkins to say a few words. Thank you.

ASHTON HAWKINS: I’ll be very brief. I am here to represent the American Council for Cultural Policy, which is a think tank that’s existed about three and a half, four years, based in New York. We work to educate the public about important issues of the law and cultural policy. And in this last year we prepared a new book, published by Rutgers University Press, which Vishakha alluded to – Who Owns the Past? Cultural Policy, Cultural Property and the Law. When we began this project Kate Fitz Gibbon, the editor, and I were very involved in choosing authors and thinking about what counted and so forth and so on. And we had absolutely no idea that we were writing something that would be quite timely when it came out. We thought it would be sort of scholarly and not very much in the news. About a year ago, Bill Pearlstein – another member of our group and the American Council, Kate and I met with David Rudenstine and a group of distinguished professors from Cardozo Law School, including Justin, to organize a series of public discussions on art, law and cultural heritage. Thanks to museum director Melissa Chu and Linden Chubin of the Asia Society, we have been able to reach out to all of you here tonight at a time when attention is focused on the arts of Asia. I want to thank all concerned for taking on the challenging task of combining arts issues and legal issues in a public forum. I want to stress – and not just because I’m a lawyer – how important the law is in defining China-U.S. relations on cultural property. It is often said of China that it is a country of men who set policy rather than laws. I will leave it to the panel to explain what that means, with regard to China’s policies on cultural heritage. It is also important to consider how we in the U.S. implement and enforce our own laws, where there have been growing problems. In October, 2001 the late Senator Daniel Patrick Moynihan, the chief architect of the primary U.S. cultural heritage legislation, known as the Cultural Property Implementation Act – CPIA – said a number of highly critical things about the operation of the committee reviewing requests for import restrictions. He talked about the committee’s total secrecy and the need for transparency and he raised the issue of the multinational response requirements of the law, saying – and I quote: The United States will act to bar the importation of particular antiquities but only as part of a concerted international response to a specific severe problem of pillage. One cannot effectively deter a serious situation of pillage, of cultural properties if the U.S. unilaterally closes its borders to import and they find their way instead to London, Paris, Munich or Tokyo – (or, I would add, in the case of Chinese antiquities, to the hugely growing markets in China itself.) I would like for myself to dedicate this evening’s proceedings to the memory of Senator Moynihan and to his reverence for the rule of law and to creating the opportunity for the American public to, as he said, view, study and appreciate cultural antiquities which reflect the multinational heritage that is the essence of our nation. Thank you.

JUSTIN HUGHES: Well, with that I think we’re ready. My name is Justin Hughes. I teach Intellectual Property at Cardozo Law School and direct our Law School’s Intellectual Property. As you all know by now, from things President Desai said and Ashton Hawkins said, this really is the brain child of Ashton and Kate Fitz Gibbon and Cardozo’s Dean David Rudenstine. I am only here as the guy up here to take the bullets and to introduce the panelists. This is certainly an extremely timely panel. I want to talk a little bit first about our rules of engagement and then I want to introduce the panelists and then I want to give just a little bit of legal background for this evening’s discussion. The rules of engagement will be very simple. We have about an hour and a half for discussion. I am convinced, from talking and e-mailing with these panelists that any one of them could go on for twice that time alone. I have also been warned that many of you in the audience could do the same. And for that reason we will be distributing these index cards for people to write down their questions. And during the course of the discussion the questions will be brought up to me. In fact, we’re running such a tight ship tonight that none of the panelists will be making statements either. And we are going to proceed right into a Q&A after I introduce them and just give a little bit of introductory remarks about the legal background. Let me introduce our panelists. Immediately to my right is Magnus Fiskesjo. Magnus is on the faculty of the Anthropology Department at Cornell University and he is the former Director of the Museum of Far Eastern Antiquities in Stockholm – one of Europe’s foremost museums of Asian art. I am giving very short introductions to everyone on the panel so that we can get right into the substance of tonight. There are more extended biographies in the program you have in front of you. Next to Magnus is Nancy Murphy. Nancy spent seven years practicing law in China and she also has subsequently been for seven years a gallery owner in New York. Nancy tells me that in a former life she was a low level court official in the Ching Dynasty.

JUSTIN HUGHES: Next to her is Jim Lally. Jim Lally has spent thirty years in the art gallery world and for those of you who read The New York Times very carefully, in their review of this past weekend’s Asian art shows, in fact, Jim’s exhibition was mentioned very favorably, glowingly, as the exhibition at his gallery. And next to him is Marc Wilson. Marc is the Director of the Nelson-Atkins Museum in Kansas City, where previously he was the curator of Oriental art. And he has been in the Asian art world for thirty-five years. And then last – book-ending at the ends – are the neophytes, myself and Jo Backer Laird. Jo is a good friend, the general counsel of Christie’s, and I’m also very pleased to say she is an adjunct professor on the Cardozo faculty, where she teaches art law to fifty students absolutely enamored with her class. All right, so that’s introductions for our panelists. Let me give a little bit in the way of legal background because there is both a very complicated factual background here and a very complicated legal background. And I’m sure this evening we’re going to have discussion, if not debate, about each of those and we’re going to have discussion and debate about the causal relationship between the two. I’m going to turn to the panelists mainly for their thoughts on the factual background. But for the legal background I know this room has many people who are very aware of the art law situation and the legal situation in terms of importation of antiquities – but there are also many people who aren’t. The principle point for our background is the 1970 UNESCO convention on the illicit movement of art treasures. And the United States’ ratification of that and our subsequent implementation of it, through implementing language, which will be commonly called The Implementation Act by our panelists – the Cultural Property Implementation Act. Now, the Cultural Property Implementation Act establishes a committee which is housed in the State Department – a committee of non-government officials – who are charged with making recommendations, advising the President on whether or not import controls should be put on antiquities from particular countries based on a petition or a request from those countries. And I believe it was 2004 that China made a request to the United States?

JUSTIN HUGHES: In 2004 China made such a request to the United States, which I’m sure we’re going to have a great deal of a discussion about. And in 2005 the State Department committee held hearings on this issue and yet to date we have not heard any recommendations from them, any decision as to whether or not the Chinese request should be honored in any way, shape or form. So that’s part of the legal background that is something that’s hanging over us as a great issue of uncertainty. And the other major piece of legal background, which I think is worth mentioning, for those of you who aren’t in this area of law, is the National Stolen Property Act, which in a way, is a Damoclean sword over a lot of the art market. Because, as our courts have interpreted the National Stolen Property Act, any country which has a patrimony law which claims ownership of all antiquities or all ancient art in its borders might make a claim of ownership when something is brought into the United States illicitly, illegally and therefore seeks someone’s prosecution under the National Stolen Property Act. So that’s a rough legal background, very much a sketch. I’m sure the panelists are going to have a great deal to say about that. And before we jump into the law, though, I’d really like to get the panelists to start talking about what the factual situation is. And there are two components of the factual situation we need to think about. One component is what is actually happening in China in terms of the pillaging or robbing of tombs, the depredation of archeological and ethnological sites. That’s one part of the factual picture we need to talk about. And then we need to talk about the factual picture of the art market and Chinese antiquities in the art market – where that art market is, how much of it is in the United States. And then we also need to talk about the causal relationship between those two. So, first I’m going to turn to Magnus and I’m going to ask Magnus to tell us a little bit about the situation on the ground. How much, how much depravation, depredation, how much pillaging of archeological sites is happening in China, in your opinion?

MAGNUS FISKESJO: I’d say it’s quite a lot. Of course, there is no exact figure because by definition looting and pillaging happens in secret. But the aftermath becomes visible when government agents or professional archeologists come visit places and all they can see is turned up stones and maybe pieces and shards of things that got shattered by ignorant looters who are only looking to find pieces that could be an easy sell and then would leave destruction and battered and destroyed pieces behind. I think, in terms of a general picture it’s important to remember a couple of main points. One is – of course, everybody here knows that China has a long history, a tremendous cultural heritage and therefore there are many sites all across China. And what perhaps not everyone knows is that there also is a very professionalized body of people working with research and cultural heritage protection. There’s a state agency in charge of protection of cultural heritage. There are not only universities but also academies solely focused on archeological research, with research stations all over China. I have contacts in all of those apparatuses and so I hear a lot from them about the frustrations they have – mainly two. One is, of course, that those in charge of cultural heritage have to cope with the economic development that is happening all over China. When a new road is built or a factory or something like that, inevitably there will be encountered ancient sites that these archeologists then have to drop whatever else they were doing according to their own research design and instead try to work on that. So they’re overloaded already, through this economic development that is taking place. And then, related to that is how their situation and frustration is compounded by the damage that is happening through looting, which of course also has to do with the opening up of the economy, with widening gaps between rich and poor and where many poor souls in the countryside, realizing that there may be a quick buck to be made from taking things from ancient sites or digging for them, they’ll go ahead and do so. Then they present these things that they can locate to the organized gangs of smugglers who will then take these pieces that they reckon can be sold, out to Hong Kong or to other places. That’s the general situation. There’s a lot of resentment amongst the professionals at this situation. I’ve noticed that recently the Chinese government, in December last year, December 22 nd, the State Council, which is China’s central government, sent out a message to all relevant authorities, including the Tourist Administration, and all kinds of bodies involved in education and so on – to really get a grasp of this issue and work much harder to protect cultural sites, wherever they are. So this is the general picture of the situation. And I should just end by saying that this is an issue very much in the news in China. There’s a very widespread awareness that links the current situation to the wrongs that many Chinese people, especially intellectuals, see Western nations as having committed against China in the past. They’ve been sending people over to actually pillage, you know, in uniform.

JUSTIN HUGHES: Marc, let me ask you, what’s your assessment of the situation on the ground in China? Do you agree with Magnus?

MARC F. WILSON: Yes, I actually do. It’s very hard to get a realistic picture, because the information presented varies all over the map. And it doesn’t take into account any sense of priority or what’s important or what’s not important. And that’s part of the problem. So you don’t have a real sense of the dimension of how much of this activity is really important and how much of it is the perpetuation of longstanding practices going back over two thousand years. Sima Qian for example, talks about it. And it’s very difficult because it’s not just that we’re seeing the depredation of Tang tombs or Han tombs or Zhou tombs, but in this number – which varies widely from two hundred thousand over two and a half decades to five hundred thousand – are also small tombs where we’re seeing fairly recent burials. We’re talking about Ching, mid-Ching, late Ching burials. And those are very different categories. You’ve got to understand what is important and what is not. And certainly where is the destruction of important material and what is it that’s, where is that really coming from? And what are those causal relationships that Magnus refers to? Because economic development, which he mentioned, certainly is a great causal relationship. There is no doubt that the impact of economic incentives – I mean; it is this matter of supply and demand. I don’t think anyone would argue against that. But where are those economic incentives? Where are they coming from? Are they coming from us or a burgeoning internal market? All of these things have to be dissected. And I think that has not been allowed because of the exaggerations of different positions that have manipulated the information, manipulated what’s really happening. So it’s really very, very difficult to get an extent of what is really being damaged. Where are archeological sites known, important versus those that are my great-grandfather’s tomb? And I think that’s one of the major problems. As Magnus said, it’s very true that you must understand the Chinese situation historically to understand how the problem is couched in Chinese terms. Magnus is absolutely right about that. Very often today history is rewritten and things that were perfectly acceptable to the Chinese, and that they even promoted in the past, are now excoriated and that much of what was in the past a perfectly acceptable practice is today excoriated and foreigners – Japanese, Americans, Europeans – made a scapegoat for what was accepted practice.

JUSTIN HUGHES: Jim, we seem to recognize that there is some relationship of supply and demand and economic development. In my mind given the amount of economic development going on, the simple amount of land being disturbed in China – even if there was no demand at all there still may be a great deal of archeological damage going on. But let’s talk a little bit about supply and try to make some connection between the supply and the internal demand. And Jim, tell us about the art market for Chinese artifacts or the global market for Chinese artifacts and antiquities. What’s the place of the American art market within it and what’s the general context?

JAMES J. LALLY: Well, it is a global market. The market for Chinese art is perhaps the most international market of all. I began my career working at Sotheby’s and was eventually in charge of Chinese art sales. And looking at the subscription lists I could see that the subscription to Chinese art catalogues was far more international than any other category you could think of. And as we see now, it’s the only category where both of the major auction houses – Sotheby’s and Christie’s – have sales in three locations. They’d like to have them in more but the laws in Japan don’t permit public auctions without enormous restrictions. The other categories are basically London and New York or London and Geneva or whatever. But taking away jewelry, which is not really an art category – Forgive me, any jewelers here. The international nature of the market is a key component of what we’re here to discuss because if we all agree there is an issue, there is a problem here and we agree that one of the problems relates to market demand, causing people to think it would be a good idea to go and find something to supply that demand, then we have to look at where that demand is coming from. And that is not primarily coming from America. That is a key issue, a key fact to deal with. The only statistics that we have that are publicly available are public auction statistics. We do know that there are private markets around the world as well. But by tracking either one, they track very closely, one to the other so that it is best to use what you can say are facts. And statistics in China, in the year 2004 the Chinese government website – Artron – published their total sales of Chinese art at public auction at about $680 million dollars, U.S. – or the equivalent there of. These were all things sold inside mainland China, excluding the Hong Kong market, which remains an international area. The fact is that that was by far the world record for any country ever in history holding Chinese art sales by far, a magnitude of ten times. But in the year 2005 the same website showed that the growth of Chinese art sales inside China – a place, by the way, where public auctions were banned until 1993 – so starting from ground zero in 1993 they’d outstripped the world and gone to US$680,000,000.

Last year, 2005, they went to just under 1.5 billion dollars in turnover of Chinese art at public auction inside China. Elsewhere around the world people were not ignoring Chinese art. They simply were not buying as much of it. In Japan and in Taiwan there are major active markets. The statistics for public auction in Europe in 2005 were a hundred and forty million in turnover of Chinese art -- in America, about sixty-eight million. So if you add up what we have of the international market we find that America is less than four per cent of the international trade in Chinese art in the last year, in the year 2005. There is a little known statistic that people don’t seem to pay any attention to that far more Chinese art has been sent into China last year than came out. And the other issue that I’d like to point out about the international market is that China may have more demand. It also has chosen not to close down one of the largest trading areas, which is within its control. Hong Kong was handed over to China in 1997. A decade later Hong Kong is fully absorbed into China. People in Hong Kong are Chinese citizens. They have Chinese passports. That has not changed the fact that the Chinese government chooses to continue to have Hong Kong run as a completely unregulated, unrestricted exit point for any kind of art or antiquities. And come this May, our small Asian art fair that was held in New York just this past week will be dwarfed by two Chinese art fairs, two art fairs devoted entirely to Chinese art – both being held in Hong Kong, one of which is sponsored by the Beijing Palace Museum and the Poly Museum and the Provincial Museum of Shensi. So the market is very much international, is the first fact. And the second fact is that when you look at where is the largest market for Chinese art in the world it is, by a factor of twenty-five times larger than the United States market, the market inside mainland China. And the world market is also far larger than the U.S. market.

JUSTIN HUGHES: Jim, let me ask you a follow-up on that. We were talking before and I’m surprised a little bit. You expressed great doubt about statistics coming out of China when it was concerning the number of robberies or the number of tombs being disturbed. Are you confident that 1.5 billion dollars is as good as a Wall Street banking statistic?

JAMES J. LALLY: I believe when we had that discussion you took great pains in pointing out to me the fallacy of believing statistics in America, at Wall Street or whatever. We deal with what we’re given. The fact is that the Chinese government is very proud of their auction market. They’re very proud of the fact that they have changed completely, from a period where they had told their citizens they had no right to art. They had confiscated art from their citizens. They had destroyed art by government policy – temples, anything old. I remember there was a campaign against the Four Olds. So they switched their policy around and extended freedoms, economic freedoms, to their people. And they have since then been promoting the art market as fast as they can.

Now, it may be that their statistics are slightly inflated but I can tell you that their statistics still, if you take off twenty per cent, make them by far the largest factor in the world, Marc. And I know no one who disputes that.

JUSTIN HUGHES: Okay, and it almost sounds like you’d say, even if the statistic is false, you’d hold it against them. That is, they’re putting it out there…

JAMES J. LALLY: You want me to renounce all statistics?

JUSTIN HUGHES: No, no. You know, I just want to know if you’re going to use the statistic out of Beijing to make the case that the United States portion of the art market is small, then –

JAMES J. LALLY: Do you have a better choice? What should I do to, to quantify that problem?

JUSTIN HUGHES: Well then, when Magnus tells me how many tombs are being spoiled –

JAMES J. LALLY: I didn’t debate Magnus, is the point.

JUSTIN HUGHES: Okay, all right, okay. Now, Marc, let me ask you, in terms of a percentage of the art market, tell me the place of museums in this, in terms of consumers.

MARC F. WILSON: I can only speak for United States museums. And very few of us collect Chinese art who could pay or would be willing to pay the capital sums that are necessary to compete with the Chinese – and I include in that Hong Kong – buyers. We simply don’t have the funds and it’s arguable that perhaps our priorities aren’t there. So I am aware of what my colleagues close by buy. I am aware of those elsewhere across the nation. And it’s not very impressive. Let me say that it’s altogether rather feeble.

JUSTIN HUGHES: Magnus, would you agree with that, that museums have a feeble role in the Chinese antiquities art market?

MAGNUS FISKESJO: Well, no. I think that it is useful to consider the role of museums in this. And I don’t see museums existing at the pinnacle of a pyramid. After all, among those collections that have been made by private collectors, many are destined to finally arrive at a museum. Why is that? It’s because it’s seen as a prestigious and appropriate destination for collections. So museums buying for themselves are setting an example, I’d say, for all of those people collecting as well as actually for the general public and for the world. And it was actually part of the reason why I’m in favor of looking positively at the Chinese request of restricting imports, given all the destruction that is going on. And I think that museums should act first and refrain from acquisitioning objects that can be suspected of having been taken out in an illicit manner. I think it’s important here, if I may, to make a distinction and not talk about Chinese art in general or antiquities in general. But let’s try and distinguish between objects that have formed part of some sort of a context or a whole, such as a monument. An easy way to think of it is if you have a temple with a Buddha to saw off, to have a looter saw off the head and smuggle that to an auction in a foreign country. That is ripping something out of a context.

But on the other hand, I think we also must recognize that there are objects that were made to travel. I think of a painting, including traditional Chinese painting, as objects made to change hands from one collector to another. So I think that’s a huge distinction that we need to make. And actually, when I myself served as a museum director I was confronted with different objects. One donation I rejected, this was a two thousand year old Chinese ceramic horse, tomb furnishing. I felt there was almost no possibility it could have appeared in Sweden where this was, except through illicit digging, destroying a site. So we’ll never know about it or even where it was, except general North China. And then shipping it out and having it end up in Sweden. So actually I took that horse and in conjunction with descendents of the donor who had bequeathed it to the museum, with their consent I explained the situation in China. I sent it back to China to the National Administration of Cultural Heritage that are now putting it on display as an example that there are Western countries that will see this problem for what it is and return an object such as this. On the other hand, also during my tenure, I bought a classical painting, like I just mentioned, on this notion that there are objects and there are objects. I think that’s one important distinction to make. The other one would be to distinguish between Chinese and Chinese. There will be people in China, as I mentioned already, who are -- either because of poverty or ignorance or greed -- interested in taking things and actually destroying them. On the other hand, there are people who appreciate it and who think in terms of the long term, where they see China as a custodian of cultural heritage that needs to be preserved for future generations in China and beyond and so would like to put a stop to this looting. Against this background, I think that museums in the West -- as, you know, they’re the most prestigious collectors out there in the eyes, let’s face it, of the global public. Their actions, -- I think this is very important in terms of, as a signal of what we should be doing. I think if major museums acquisition objects that obviously have come from pillaging then that’s like a signal to like saying that there should be a free for all.

JUSTIN HUGHES: Okay, but you’re not disagreeing with Marc that the amount of acquisitions is feeble in terms of the percentage of the Chinese antiquities market. You’re only saying it has symbolic value and the position the museums take has symbolic value. You’re not disagreeing with Marc as to the amount.

MAGNUS FISKESJO: Well, I started saying we need to make this distinction between where are the paintings and where is the tomb furnishing, for example. I can’t give a figure immediately for the breakdown of that. I am not familiar with American museums’ situation right now. But I suspect that there are a lot of both. And my criticism would be of the museums acquisitioning objects that have come from ravaged sites.

JUSTIN HUGHES: Now, Magnus said he was in favor. He led us to a new issue in favor or well disposed toward China’s request from 2004. And I think we ought to turn to that and talk to it, talk about it in some detail. And Nancy, as the former Chin dynasty official, who has practiced law both in China and as a lawyer in the United States, I would like you to tell us in detail what China has asked for – and if you can, attach it to or connect it to American law, the Implementation Act for the UNESCO convention.

NANCY MURPHY: This is the boring part. Actually, I hope it’s not the boring part because this is an element of this discussion that I think has been very under-discussed in the art community, simply because it is the legal aspect. And I think it’s of really critical importance that we all understand this aspect of the discussion and feel competent to talk about it, feel competent to assess the legal posture in which the request has come to us and how we then have to think about it legally. Because, in fact, if whatever the problem is eventually defined as, it is going to be solved, law is going to play a role in that. So I invite you all to think legally or listen legally just for a little while, because that’s a very important part of this discussion. We have all tried to get a copy of the Chinese request which is a public summary of the request that was published and was made available by the State Department. Nobody, as far as I know, has a copy of the original Chinese language request. And if anybody here does, I’d really like you to let me know right now. And I’m not really joking because I’ve been trying to see this ever since we got the English language summary.

NANCY MURPHY: Part of the reason this is important is because a close reading – or not even a terribly close reading – of the English language request immediately shows that there are certain problems with this request. It appears to have been drafted in, I would say, 1999, possibly the year 2000. I read with amusement that they note in brackets that there has been a new law passed in 2002 which is a little odd. I’ve read enough Chinese legal documents in my time to know what they look like when they’re translated into English. And this doesn’t strike me as a Chinese document that’s been translated into English. And it raises very serious suspicions for me as to where the document came from and I’d also be very interested on a personal lawyerly basis in knowing which Chinese government agency claims authorship and the origination of this document. Because in China that’s very important. Now, the government’s very powerful and, as discussions will begin to show, part of the problem in implementing cultural protection in China has to do with the fact that for a monolithic government the Chinese government often is at odds with itself, depending on region, level of government or the content.

Is it the economic development group? Is it the cultural protection group?: So there’s not as much lock step as we might like to think sometimes. And I would be extremely curious as a U.S. citizen who is going to be affected by this, to know who the author of this document is. We don’t know that. From a legal perspective for me that is very troublesome. And as such, I personally am not terribly happy with my State Department in taking this request as seriously as we are. But I will move off this point and go to the second reason why I think there are a couple of problems with this request as drafted. And those have to do with the fact that it doesn’t really satisfy the requirements under the U.S. law. Justin told us at the beginning that the United States became a signatory to the UNESCO convention and twelve years later we passed our own domestic United States legislation, sort of taking that a little further. That’s not really a requirement under UNESCO but the United States did it. So, cool. One of the things that legislation did was enable countries like China, Mali, Columbia – whoever it is – to make it a little bit easier to come to the United States and say, We’re having a problem, help us out under UNESCO. That’s all fine. But this really is United States legislation. It’s precisely drafted.

It has clear, easy to understand, not terribly vague requirements that really have to be satisfied before a request can be considered to be appropriate or full under the act. So if we look for a minute at China’s summary, part of it really does strike me as a Chinese document, because the first half of it is a discussion of Chinese history, which I like. I studied law in Shanghai and in Beijing and I learned a lot about Chinese history when I took those law courses. So there’s a discussion of China’s history and then a discussion of steps that China has taken to protect its cultural heritage. There is a very interesting, very carefully edited discussion of pillaging in China, I would say, which has to do with pillaging on the part of Western countries in the Nineteenth and Twentieth Centuries – which is quite a partial discussion of pillaging in China. And interestingly enough, there is not a detailed request, per se. There is not a long well developed request saying, you know, Do this for these types of materials. There’s really just a laundry list of materials and objects saying, We want an embargo on them. It’s a fabulous example of a vague and broad document. If you ever want to use one you might want to hang to this for that. But, okay, fair enough. There’s something in there that inspired the State Department to say, Okay, let’s consider this request. Under the United States law a request by another country has to satisfy five requirements. I’ll do this really quickly for you.

The first requirement is that the cultural patrimony of the country making the request is in jeopardy from the pillage of archeological materials. I think we’re all in agreement enough on that to say that China making a request satisfies that. I know that there are extremely intelligent commentators with whom I tend to personally side at times who would say: This is not a crisis situation. And if you look at the legislative history of this law in the United States, the intention was really to address crises, where things are really out of control. And now we’re into subjective cause on how bad are things in China. This panel is not going to determine that and I’m not going to determine that. So I take the satisfaction of the requirement under A as like a maybe. It has not, to my mind, really satisfied that requirement sort of without question. It’s an open question.

The second of the five requirements under the law are that the party or the country making the request has taken measures consistent with the UNESCO convention to protect its cultural patrimony. I had a brief discussion with Justin about this. I don’t know in detail what would constitute measures consistent with the convention. And I simply didn’t have time to develop expertise on that front. And I understand they’re not extremely precise. Somebody in the audience at some point might want to add to this. But there is a general standard that’s required by requesting countries. It’s impossible to say that there is a consistently applied standard, a protection of cultural relics everywhere in China at all times. You just simply can’t say that. You know, there are times and places and circumstances under which it’s just fine and then there are lots of times and places and circumstances under which it’s a complete travesty. And then there are good reasons for that and bad reasons for that. There are good reasons because people didn’t know it was happening and they’re under funded. And there are bad reasons because the People’s Liberation Army was making it happen. All of those things exist. I would submit that probably China has not satisfied B, that the measures that China has taken heretofore, up till now, to protect its cultural patrimony are not enough. And I’ll say more about that later. The next two requirements under the United States law – and let me remind you, these are the requirements that China has to satisfy before the State Department can really even think about this request -- the embargo import restrictions must be applied in concert with similar restrictions implemented by other nations having a significant import trade in such material. I think everybody knows what that means. It can’t just be us.

If the United States was the only purchaser of Chinese art and it was pretty clear that we were the only significant market, then by all means, a bilateral action on the part of the United States would satisfy this particular sub-clause of this law. But in fact, it’s patently not true. There is a healthy market in Western European countries, in Japan – and depending on how we’re feeling about Hong Kong on any given day, there is a gigantic market in Hong Kong -- which can certainly be argued to be a separate country under this law. The fact that China has expressly said they want a bilateral agreement with the United States, they’re not even trying to get any other countries in the world who are significant purchasers of Chinese art to consider this. This is, you know, very clear. It doesn’t satisfy this particular requirement. It has to be a multinational effort.

The next requirement is that remedies less drastic than the embargo being asked for or the import restrictions being asked for are not available. Remedies more drastic than this would be hard to conceptualize, if you ask me. I mean, again, granted that there is no specific articulation of a remedy being asked for by the request – nevertheless, anybody reading this would think that what they’re asking for is a complete ban on everything you can think of that’s ever come out of China, up until 1911. I mean, I’m sure there are some materials in here that are included. But it’s incredibly broad, vague and unclear. So without question there are less drastic remedies available. And that is something that I would love us all to be able to talk about at some point. Because I think the less drastic remedies are good remedies – you know that they could solve problems for people and make everybody happy.

And the final requirement under this law, if you’re still with me, is that the application of import restrictions would have to be consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural and educational purposes. There is obviously not a simple answer to whether or not import restrictions satisfy that. But I feel a strong argument is being made that, from a cultural point of view, such a complete, broad, far reaching and comprehensive embargo is very much against the interest of the international community in cultural exchange and purposes. I feel that the articulation of the archeological values and concerns has been really put forward and that for those of us for whom cultural values or the ability to interact with other cultures is extremely important has not been quite as articulated. But it’s here in the law, happily. Import restrictions cannot be inconsistent with those interests. And I’m summing up. So, having said that, I think that China’s satisfaction of the final requirement under the U.S. law is, again not terribly clear. And China has to satisfy all five. It’s A and B and C and D. C has two sub-sections.

JUSTIN HUGHES: Okay. So let’s take the Chinese request, as you’ve given it an ambiguous spin. But let’s take it as requesting an embargo of all artifacts, artistic or ethnological artifacts produced before 1911. And Marc’s shaking his head so I’ll turn to him in just in a second. And you’ve got five conditions and you’re questioning whether China satisfies each and every one of them. Marc, I know you think this is defective also.

JUSTIN HUGHES: Tell us why you think it’s defective and do you think I mischaracterized their request, first of all?

MARC F. WILSON: No.

JUSTIN HUGHES: How would you characterize their request?

MARC F. WILSON: I think that what we’re trying to do here – and let’s separate out, if we could, tomb robbing from patrimony issues. If you get them together you’ll get things really messed up. And they do overlap. But what the UNESCO convention contemplated and what our own legislation contemplated, was a saving really of archeological material from depredation and particularly archeological material and including sites that were really germane to the definition, the important definition, of culture and cultural identity. And this is – and here is where this is so open-ended, Magnus -- that this is requesting anything manufactured in China prior to 1911, the division between feudal society, with the exception, which is unnamed here, of printed books. It covers everything else that is manufactured in China. It would apply to goods that were made by China for commercial trade. It would apply to all that wonderful blue and white porcelain that the Europeans, that Sumatra, the Indonesians and everyone else loved and bought literally every year by the hundreds of thousands of pieces. It would apply to those whether they went around the ocean or across to the Middle East. So in that sense, as it is defined the request doesn’t really fit what we’re trying to protect. And for me this is a very, very big issue.

JUSTIN HUGHES: It seems to me you’re raising another issue, too. You’re posing a virtual impossibility of enforcement issue. Because you’re saying if there are tens of thousands of 1870, 1880, 1890 vases-

MARC F. WILSON: They’re from the Sixteenth Century. We’re talking millions of things that were part of an ordinary commercial trade. And let’s look at archeology and supply in China itself. The Chinese have had an active interest, a scientific, archeological interest in their own past for well over a thousand years. Now, you know, most of you know, that the first really scientific studies of ancient Chinese bronzes and jades come from the Sung Dynasty. It’s a long time ago, friends. And that those goods were dug up -- accidentally, intentionally -- I don’t know. We don’t know. No one knows – and has been part of an ongoing trade for a very, very long time and part of scholarly study for a very, very long time. So all of that exists, has existed, in the open market, which makes it even more difficult to enforce this as it’s written in such an open ended way.

JUSTIN HUGHES: Okay. Jim, is there anything you want to add in terms of your perspective on the defectiveness or the correctness of the Chinese request?

JAMES J. LALLY: Well, I think the way we all should look at this, because all of us here at the panel and all in the audience, I would venture to say, are deeply concerned about the preservation and protection of Chinese art and culture -- and what we should look at is the effectiveness and the possibility, as you say, is this: what can we do that really would be effective? And the way that the UNESCO convention was written, as Marc pointed out, was designed to focus the energies of the world – not one country, but the international community – on the protection of cultural heritage and particularly cultural patrimony. It’s a very charged word but it doesn’t mean every single snuff bottle and every single Tang horse. It means the patrimony of a country, the essential part of their past which helps them to define themselves, what they regard as their nationhood. And that’s one defect in it, that it is broken down by nation by nation while we’re trying to protect ancient cultures which cross boundaries willy nilly. But by taking that line that says patrimony is what we’re protecting the United Nations was trying to make it a doable task.

Secondly, there is this issue of what we all would like to do to protect these great and important cultural treasures. They must be separated from the vast array of additional material that’s out there inside China and outside China to make it a manageable task. And that’s the way that the Cultural Property Implementation Act was written – with good intent, to have good effect by American action in cooperation with other nations around the world, to make us a target that could be achieved and to work together to achieve that target. And when you define the target to be everything from Paleolithic Era through 1911 without discrimination, it makes a mockery of the whole process. And when you say that the United States can act individually when it’s such a small proportion of the consuming public and when this nation itself is not only not controlling the internal market but is promoting the internal market, then I say there are fatal flaws across the board.

JUSTIN HUGHES: Okay, let me just go through this. The first requirement, as Nancy laid it out, is – and as the statute says – that the cultural patrimony of the state party is in jeopardy from the pillage of archeological or ethnological materials of the state party. Yeah or nay, is that happening, Magnus? Is that condition met?

MAGNUS FISKESJO: Yes.

JUSTIN HUGHES: Nancy, is that condition met?

NANCY MURPHY: Maybe.

JUSTIN HUGHES: Jim, is that condition met?

JAMES J. LALLY: I think, to some degree. If you read the context of that statement it’s meant to be an emergency, a crisis situation which can be pinpointed to a specific site. It’s not meant to declare a state of national emergency when it suits you to do so.

JUSTIN HUGHES: Okay, that’s an interesting question because the statute actually has a separate emergency measures provision…

JAMES J. LALLY: Yes, it does.

JUSTIN HUGHES: …which makes me doubtful of your two’s reading of that. Because there is a separate section for emergencies. Marc, is the first condition met? Is the patrimony of the state party in jeopardy?

MARC F. WILSON: Essentially probably not but there is absolutely some pillaging that is just so unacceptable. But is that damaging China’s definition of itself? I doubt it. It should not happen.

JUSTIN HUGHES: Okay.

JAMES J. LALLY: And that’s just, it should not happen.

JUSTIN HUGHES: Okay.

JAMES J. LALLY: But I don’t think, given how cultures identify – China just didn’t pop up. I mean, you know, it’s five thousand years old. This definition is fluid. It’s going on and it includes many people other than Han Chinese.

JUSTIN HUGHES: Okay, now let’s go to the second condition. Nancy has raised a serious doubt that the state party has taken measures consistent with the convention to protect its cultural patrimony. Magnus, has China taken measures consistent with the convention to protect its cultural patrimony? How will we fill that out? What content can you give us? Help us get our minds around that.

MAGNUS FISKESJO: Well, they have set up a system, labeling known sites – monuments and such. And that’s an interesting distinction because there are a lot of these sites that we haven’t seen yet but the looters get there first, of course, and these get destroyed without us ever knowing whether they defined Chinese identity or whether it was an important part of world cultural heritage or not. I imagine it would be hard to find any that were not. But to answer your question, yes, there is a whole system for labeling on the national and on the international levels to the world heritage site system, and then on the national level, of national treasures and sites and then provincial and local. And as I just mentioned, in December, 2005, a rallying by the central government of all these different government authorities that are involved even in terms of tourist authorities or every conceivable part of the arms of the government that should be engaged in these are being told that they need to pay explicit attention to it and get in line with the number one priority of seeing that not more destruction is done.

JUSTIN HUGHES: Are there cases where you would think, is there an example that’s not enough? Look, our government talks about fighting the deficit every day. I think that’s just show.

JUSTIN HUGHES: The central government in Beijing hands it out, says, Oh, enforce the cultural property laws. That’s like George Bush fighting the deficit, isn’t it?

MAGNUS FISKESJO: Well, you can find instances of local authorities deciding to rush the highway and ignore the sites that were discovered, unknown before but discovered during the digging for that highway and then just crashing through. And of course that’s why the government is seeing the need to rally everyone and inform everyone that such incidents should not happen. Now, you would have a situation where the Cultural Heritage officials and the archeologists locally or other government officials say, No, stop, we have to go slow here and make sure that we’re not damaging things. And officials who don’t have that kind of an education or concern, they may say, No, to hell with that. We need to modernize and that’s it. And now you have those that conflict. That can appear and has appeared in local context in several places in China. You have that being over-ridden by central authorities saying that everybody needs to get in line. I was going to get to that I feel this request actually spells out pretty clearly what the government has been doing and where they’re failing because of the intense activities of gangs of robbers. And there’s some very explicit mentioning of that and how containers are discovered in ports with address labels for United States ports and are obviously being looted materials set up to be sent over here and marketed here. The Chinese government themselves acknowledge that as the limit of the success of their efforts and that is why they are proceeding to make these requests.

JUSTIN HUGHES: Marc, is China taking measures consistent with the convention to protect its cultural patrimony?

MARC F. WILSON: I think this is the Achilles’ heel of the whole issue, to be honest with you. They are in public making statements both for consumption domestically and internationally of just the sorts of things that Magnus has mentioned. It makes good press. But in fact, you get --whether through tacit or otherwise -- complicity with this and profiting through this art, the art trade. There is a lot of economic benefit to very important people that would be lost if they enforced this. Because, as I said earlier, the party is somewhere in the background always. And I think Magnus had mentioned Poly. Well, you know who Poly is a spin-off of--- the PLA. If there was ever a military industrial complex, the PLA is it. They are great manufacturers. They are traders. They’re involved in trading all sorts of things. And one of the things, as you know, Poly Museum is spun off by some officers of the PLA and it is very much involved with international trade of Chinese things. As a matter of fact, Poly runs auctions in government buildings, both central and provincial, of the very same material that we’re being asked to prohibit. So where I have a problem, then, is why – I detest the tomb robbing but do I have to acquiesce in what to me seems to be hypocritical behavior by the very people who have the power to stop this if they wish. And they have shown that they can do it.

JUSTIN HUGHES: Jim, you had something you wanted to add on that?

JAMES J. LALLY: Yes, I think that Magnus makes a good point. There are people who care deeply about the problem in China and who are doing their best to solve the problem. But I have to part company with his view of what’s going on in China when he speaks of the overreaching, the overriding effort of the federal government, if you will, the national government, taking the key measures that they could take to enable these people to better protect the sites that need protection. And in that, I think there are two key issues that we can look at. One, and perhaps the most glaring of all, is their attitude towards economic development, where we know for a fact that the Three Gorges Dam was known to inundate not less than two thousand already identified archeological sites in Sichuan. And that is only one of many, many examples. There was a report in the Chinese press a few weeks ago of a cemetery in Mongolia that happened to come into conflict with a plan to build a block of flats. And the cemetery did not survive. There was not a question of how long to wait before going forward. The central government cannot and does not seem to have the priorities that Magnus would like and I might like them to have. That’s number one. Number two, we have the situation of Hong Kong, which is owned and run by the Chinese government. In Hong Kong you have a very small, very small border between Hong Kong and China which, for anyone who is looking at the kind of border problems that the United States has, looks like an absolute snap, how to police that border. And yet I’m told there is lots of material coming into Hong Kong all the time. The Chinese know this and yet in their control of Hong Kong they have done absolutely nothing in a decade to change the fact that anything that is in Hong Kong can be freely exported from Hong Kong without restriction or regulations. Those are two very easy, major steps that the federal government or whatever you call it, the national government, could take and have not shown any intention of moving towards.

JUSTIN HUGHES: Okay, now, let me go to the third topic here. And this is interesting. Nancy you raise provenance issues about the Chinese request, which is kind of ironic to me. I want to ask the panel, do we have any insight at all why other countries have not been asked? Do they not have statutory mechanisms in place nor have they been asked? You know – if this third condition is, if applied in concert with similar restrictions implemented by other state parties to the convention, why haven’t the Chinese also taken this request possibly written years ago and sent it elsewhere? Magnus, you had some insights?

MAGNUS FISKESJO: Well, I think -- correct me if I am wrong because I’m not an expert on U.S. law – but I believe that actual implementation of international law of the UNESCO convention is in part up to each national government. And the U.S. has chosen to implement it in certain ways. I am aware, for example, of the British response, which is a different one. There it’s become illegal to knowingly deal in objects that may have been looted. And that would mean that if that container – now I just mentioned that China’s government was able to apprehend, stop a couple of containers in the airports. They are assuming that lots others made it through their customs and arrived in the U.S. But those objects, archeological objects torn out of tombs or sawn off of Buddhas, statues – when they’ve shown up, if the U.S. had, chosen the British approach, then if they showed up in a store without the provenance and could be assumed to have been recently looted, that would be criminal, according to the new newly implemented British legislation. Now, as I understand it, the U.S. has chosen and I also went and looked at the list of different implementations – you know, there is, as you suggest, emergency action. For example, there was first one set out for that for a specific site in Guatemala in ’91. In ’97 the U.S. concluded a bilateral agreement with Guatemala. And this is the way the U.S. has set this up.

JUSTIN HUGHES: But, Magnus, that wasn’t my question. The question was, has China gone to any other country and asked for these types of restrictions on importation at the universal level? And if the answer is no, then the question might be does that country, whether it’s like the United Kingdom, have a system in place to go after single objects? And is China rigorously or vigorously going after those? And that would be the question. Does anyone know if this is happening in other markets beside the United States, that the Chinese are actively making such requests, either at the universal level or the specific levels? Marc?

MARC F. WILSON: I don’t know. I mean, they have an agreement with Peru but I think Peru is disqualified because I don’t think it’s a major importer of Chinese artifacts. Oh, I feel for Peru. I mean, Peru is exactly the sort of country where we ought to have these bilateral agreements. We enact these bilateral agreements with Guatemala for darn good reasons.

JUSTIN HUGHES: Okay, now let me go to the first question from the audience that fits our fourth requirement, and Nancy, it’s for you. Nancy said that there are less drastic remedies that would be good remedies. What specific good remedies would members of the panel recommend? And I’ll let you start on that, since that’s the next requirement for the Implementation Act.

NANCY MURPHY: I don’t have a specific concrete answer to that because I would look first to the Chinese themselves to define the problems more specifically and more concretely. The way we worked in China -- to cobble together solutions to big problems -- when I was over there, what you really first get is a kind of manageable description of the problem. Which is one of the things that’s frustrating about this discussion because it tends to be in very broad brush strokes always. You know, there’s all this looting and everything is being stolen. And that’s why we probably end up with broad brush stroke proposed remedies. And I would love to get more clarity on categories of the problem. As we’ve said and as Marc keeps indicating, there are certain cultural properties that deserve to be treated as emergencies and crises and you know heightened treatment. And although I’m not a cultural relic’s protection expert, I could come up with measures to address that sort of a situation. Generally speaking, however, I suppose what I would ask for, as Magnus has done, is a distinction that is workable. The stolen property laws, I think, are important because they tend to start with property that you can identify very clearly has been stolen. And Marc has talked about property that can’t be just assumed to be stolen.

And I think what might make a lot of sense would be to start with the easy cases, the cases where we can really identify with certainty -- and my understanding is there are sort of tens of thousands of these. If something has been stolen and wrenched from its place – you know, an archeological site or a tomb, a temple – we can work with China as to how we should treat them. If China can’t stop that within its borders then what happens on the United States side? And we can put in place agencies that can work with each other. The Chinese have got to get their internal rules and regulations clear and consistent. Part of the problem with enforcement within China is that there are so many inconsistent rules because the legislation permits rule and regulation making at the local level, which is a good thing but it’s also a bad thing. Because then people don’t really know what to do. And there are lots and lots of stories about sites in China not being protected because nobody really knows who is responsible or maybe nobody wants to be responsible. And it’s really key, it’s essential that China take responsibility domestically, for rationalizing laws that everybody can understand. And then we can understand them, too.

JUSTIN HUGHES: Well, I wanted you to describe some good remedies on our side. And let’s go to Jim because the question was asked to everyone. What would be good remedies on our side, assuming we can’t do a total rewrite of Beijing’s laws and their local laws? I mean, that’s too ambitious. What can we do on our end that would be a good remedy?

JAMES J. LALLY: Well, a good rewrite on our end is, I think, a futile exercise without the cooperation of the Chinese. And what we need from the Chinese is a definition of the problem which does not include everything that was made in China but defines the cultural patrimony that they really need and should have to protect. And a system – we don’t have to reinvent the wheel. We can look at what’s going on in Japan. We can look at what’s going on in England or in France in the E.U. where there are good workable systems for identifying the patrimony, for making it clear to anyone who wants to be able to work in that country or outside that country – just so a tourist knows where they stand when they go into that country. What are the rules if I buy a painting or I buy a bronze or I buy whatever, a sculpture? If they publish clear rules, they set up an organization with transparency and expectations that we can all count on, as you do in Japan, you can go to the authorities and say, I’ve been offered this screen at this dealer. I’d like to take it out. And you have confidence that you know that you’ve made a legitimate question to a legitimate agency that has clear rules, that you have legitimate expectations and that you will be able to get an answer within a reasonable amount of time. Believe me, everyone – the dealers, collectors, by far every single curator – wants this kind of clear rule book to work with that is not unreasonable. If you set up a system of a hundred per cent taxation in a country it may make you a hero as the Finance Minister, the Prime Minister says, Great, a hundred per cent taxation. It doesn’t work. If you set up a system that says everything in the country belongs to the King it doesn’t work. And if you, on the other hand, set up a working system as we’ve seen it work – in Japan, in the E.U. – where you declare, Here are the rules, and they’re reasonable rules and they allow private people to have rights -- as I think we still believe in America that you should have property rights and that there are property rights that should be given to private citizens – that’s the kind of system that then America could cooperate with and enforce and everybody would help. It wouldn’t just be the customs man standing there saying, Wait a minute, is this a Japanese tea bowl or a Chinese tea bowl? Should I let it in? How did it get out? That’s an impossible task. But if you and I knew the rules we could cooperate. And we would cooperate because – guess what? – you have much more pleasure with that object and the object would be more valuable to all and we could all share it. Because the final goal of this is the greatest access for the greatest number to the delight of works of art in the culture of every country in the world.

JUSTIN HUGHES: Marc, good remedies without a total rewrite of Chinese law?

MARC F. WILSON: I agree with Jim. What Jim has just talked about is a way to deal with the patrimony issues, whether they are paintings or archeological objects. Let’s go back to the issue; the thing that has prompted this was the citation of pillaging of tombs. You cannot stop pillaging of tombs, as Mr. A Shizhong said and that he was quoted as saying, unless the Chinese cooperate. And Hu Jintao lectured us about two weeks ago and he said that America needs to reform its economic infrastructure and stop using China as a scapegoat. China has got to get its act together to stop tomb robbing and stop using us as a scapegoat. We’re a small part of it. We deplore it. But only they, through reform, can stop that. Then we can get to the part of patrimony where I think we would all agree that perhaps the Japanese model is the sanest and best anywhere. And it has the recognition of giving and preserving -- which this debate we’re all in right now does not – what it is that makes these things so valuable, and that is that they have the best of them, which is what I personally care about. The Eufronio crater that’s going back to Italy is great not because of what it might have told us about the standing of the tomb. That thing is great and we care about it because it is such an essential expression in artistic terms of a moment of human experience that speaks to us today. I think that is what is getting lost in much of this debate, which gets all tangled up in patrimony and issues of national ego, personal ambition of careers –

JUSTIN HUGHES: Okay, all right, let’s turn to that then. Jim, you said it doesn’t work if the King owns everything. I thought the King owned everything in Italy and Egypt. I thought everything in the ground is national patrimony. Let me read this. You mentioned that economic considerations are behind much of the pillaging of sites and tombs. Please comment on how nationalism and political considerations play into the 2004 request from the Chinese government. Last question and most important, how does this compare or differ from attitudes toward cultural property in other countries? So, Jim, you said it doesn’t work for the sovereign to own everything. But I think in a lot of countries the sovereign does claim to own everything. And so the question is how does the Chinese attitude compare or differ from other countries vis a vis their cultural property?

JAMES J. LALLY: Good question. And I would tell you one key difference is that the Chinese approach is covering by far the widest swath of property that’s ever been suggested should be covered. And secondly, that you put forward Italy or Egypt as they were, that was working. I would put it to you it’s not working. It’s clearly not working. And anyone who has friends in Italy or has been to Italy knows that it’s not working. The fact is that these things, these plans – however well minded they are – and I’ll set aside the question of whether it’s well minded that Mussolini should declare that everyone in Italy is subject to Mussolini’s law that nothing should leave the country if it was not in their hands before 1902 – that kind of law is a Fiat that may look good but it doesn’t work. And if your goal is to have people who love a culture and have access to it, to have the greatest number of people know and learn about Italian culture, keeping all of Italian art inside Italy is not the answer to the problem. And that is not a model to be followed, that’s what I would say.

JUSTIN HUGHES: How does the Chinese attitude compare or differ from other countries vis a vis cultural property? And do you agree or disagree with Jim’s point that the sovereign owning everything doesn’t work?

MAGNUS FISKESJO: Well, I want to question, you know, the possibility of just holding up the model of Japan. If we do that I think we must recognize that Japan is a rich country. It’s a wealthy country. What is in this Chinese document, a request to the U.S. -- that I find quite clear, actually – is precisely this recognition that in this situation that we have now in China of economic disparity, when there is a demand and where quick profits can be made, there are, unfortunately, gangs of criminals – as they put it – meaning poor people who want to remedy their situation by destroying China’s heritage. So China’s government is taking upon itself to ask for aid internationally in curbing this flow. I mean, they put out pretty clearly that there are these instances of shipments going directly to the U.S. They see that the major U.S. museums have not generally adopted policies forbidding themselves from acquisitioning these objects. So they go to the government and make the same request. I think that rather than talking about it as a matter of having everyone here – that is, everyone in the rich world – have instant access to pieces or fragments of the cultural heritage of parts of the world in economic transition, such as China, we should instead try and frame it in terms of an ethics of the future -- that we want this cultural heritage to survive. What is happening now is a very serious development of outright destruction of hundreds and hundreds and hundreds of sites in China in order to get quick profits from the trade that is available. I think it’s incumbent upon us in the rich world to put a stop to that trade by agreeing to such a request and then perhaps ask instead, if you have import restrictions now, like a moratorium, fine. We recognize that this is an extremely serious situation at hand. What about in the future having trade in certified objects that are published and recognized as tradable without any effect in the present? And not to speak of, I have to say, all the possibilities for having exhibitions exchange. We know that there have been lots of exhibits coming from China to this and other Western countries. That is one form of culture exchange.

JUSTIN HUGHES: Marc, did you have a quick reply?

MARC F. WILSON: Oh, no. I mean, it comes down to the fact that there is tremendous disparity of wealth in China. There is tremendous disparity of wealth in the United States. I don’t think I would characterize China as a nation without economic means and clout. The Chinese are among the most enterprising people in the world. If the Chinese can’t figure this out nobody else can.

JUSTIN HUGHES: Nancy’s been silent for too long, Jim.

NANCY MURPHY: I was going to start with the same sentence. I think the economic disparities within China would continue to drive tomb and archeological site looting exactly the same way they do now. You know that the east coast of China is where the wealth is centered and that the incredibly poor areas, which is where a lot of the archeological sites are – I’m sorry, did I say that wrong? That the east, the sea coast of China is extremely wealthy and that the inland areas where, of course, a lot of these sites are, tend to be quite poor. So they don’t have to extend a single pot outside of their border to have the same situation. If somebody in Beijing can buy, can spend eight point four million dollars on a painting, imagine what that means to, you know, the peasant in Szechwan province or Shanghai. And that disparity of wealth is already there. It’s within the country. And as long as the Chinese are buying and the Chinese Curio Collectors’ Society is up to membership – registered membership, mind you – of seventy million as 2005. And those are the people who have bothered to register.

JUSTIN HUGHES: And what’s the membership fee for that?

NANCY MURPHY: You have to bring a pot.

JUSTIN HUGHES: Jim, you had a quick thing you wanted to add on this?

JAMES J. LALLY: Yeah, just briefly, I don’t think any of us doubt the good will and the sincere intent of what Magnus is recommending – that any effort that can be made should be made to stop any looting and depredation in China. If it were possible for us to feel that it could be effective I think that people would come behind it. But we could also note that there’s a tremendous problem with air pollution in China and that has a great deal of that is due to factories. And those factories spend a great deal of their time and energy supplying Wal-Mart. But no one’s suggesting that to stop Wal-Mart in its tracks would be the solution to air pollution in China.

JUSTIN HUGHES: You’re in Manhattan. A lot of people would suggest that.

NANCY MURPHY: As a matter of fact, it’s not a bad idea.

JUSTIN HUGHES: No, stopping Wal-Mart in its tracks could be quite politically popular in this audience.

JAMES J. LALLY: As Nancy pointed out, the domestic demand in China so far outstrips the demand in the United States. And the demand in the world so far outstrips the demand in the United States that to have a gesture that harms cultural contacts with the United States so greatly while doing nothing in China is not a good policy.

JUSTIN HUGHES: Okay, now we have about ten minutes or less before we turn it over to Jo for the difficult task of summation. So I’m going to run through some questions and I’m going to ask the panelists to keep the answers short. Magnus, a question for you. Do you believe that our current understanding of ancient Chinese history would be as thorough and as rich if every public institution had followed – I presume had followed, in the past tense – your policy and refused all excavated work without an accepted provenance?

MAGNUS FISKESJO: I think that’s a misguided question. I was holding up the prospect of us adhering to an ethics of the future. That means that some things have to be left for the future. On another note I’d like to respond also that of course every unprovenanced object that turns up orphaned from its context always have to be explained only with reference to those that have been investigated properly -- not by ignorant looters smashing ten masterpieces for each one that they managed to smuggle out to a market, but by people conscious of their potential in such research. So I don’t see the merit of that line of inquiry. I, think that we do have to remember the historical dimension of this, though, which I alluded to earlier – and that is that a tremendous amount of people in China do remember their unequal history of the past, when actually official representatives of Western countries actively, even in uniform -- or scholars were there to rip out things of their countries and cut down monuments. And for them to see now that this trade continues under cover of too many containers to be opened or something like that, it’s what has led them to support this request. I was quite moved, actually, when I saw a series of interviews with some -- I think it was some fifty --people in all walks of life from China, commenting on this call to attention from the central government to put the highest priority on the protection of cultural heritage. There are people from all walks of life that were lauding this. And I don’t think that’s the case of a monolithic government demanding acquiescence from its population.

JUSTIN HUGHES: They were lauding this on state television, is that right?

MAGNUS FISKESJO: No, this is in the newspaper of the Cultural Heritage Administration.

JUSTIN HUGHES: Let’s go on to some other questions. This is a very crass question from the audience. It could be taken by a collector. But, Jim, you might be the best person to argue this, answer this. Has the threatened embargo had a noticeable effect on the U.S. buyers? That is, has it driven up the market?

JAMES J. LALLY: I understand the question. And in fact, I have been asked it many times, this week and in preceding weeks. The fact is that buyers are from all over the world here in New York, not looking over their shoulder and asking what effect is this going to have. They’re buying things they love. They’re buying things that they have been seeking for years and they’re going to continue to do that. This is what collecting is all about. And it’s not a pre-planned or a calculated activity. It’s a very emotional activity. It’s something that you cannot deny. It’s a certain – and I think some of you know who you are in this room you cannot deny that urge. And I think it’s a fantasy that dealers or collectors have been responding to this threat in some way, other than continuing to do what they’ve always wanted to do and loved to do – which is to find good works of art that they can preserve, enjoy and protect, to the best of their ability. And in the market this week we’ve been in the sale room at Sotheby’s and Christie’s hearing Shanghainese spoken here and Mandarin or Putonghua spoken there and Cantonese spoken there. More than ever before we’re seeing Chinese people buying Chinese art. And that’s a good thing and that’s a positive thing. The market functions well for that. It’s not a threat to posit that somehow an auction in New York is what lights up the heart of a looter in lower Shandong. That’s just a false connection. This is going on all over the world and this is something that the man on the ground in Shandong can and should deplore, as you and I can deplore it. But we cannot try to overreach by having our customs officers believe that making difficult decisions item by item as they come across the border will have one bit of impact on the world market or the massive market inside China, under the current circumstances.

JUSTIN HUGHES: Okay, now let me ask a tough question for Marc and maybe for Jim. I’ll read it all and we’ll try to reform it if we have to. Given that the panel agrees that most Chinese antiquities that go abroad go into private – underlined – not public – collections, shouldn’t we in the U.S. do all we can to help preserve the context and legal preservation and display of the Chinese works? In other words, this wonderful thing about internationalism and education, I think the question is asking, isn’t that a little bit false when most of the Chinese antiquities coming out of China go into private collections? And if that’s true, is not the public interest more along the lines of preservation in situ, if you will? So I think that’s the nature of the question.

MARC F. WILSON: Yeah, I think on the face of it, that sounds relatively reasonable. But you have to remember, first of all, museums don’t and shouldn’t have everything. On the whole, I think museums have too much.

JUSTIN HUGHES: Can we quote you on that?

MARC F. WILSON: Yeah, absolutely.

JUSTIN HUGHES: Okay, all right.

MARC F. WILSON: You can absolutely quote me on that. Museums should select, not collect. But I think you have to and museums really should exist, you know, to have for the public in all nations those things that really are quintessential high points of achievement in the arts. That’s what a museum should do. There is a wonderful world for the private collector. A private collector, a private collection – we often see the label, private collection. Think of private collection not as questionable. It’s a personal collection. Person means a real person with real passions, a real personality. And it’s okay for that personal collection to have its idiosyncrasies that reflect the personality, the biases, the quirks of its owner, whoever she may be or wherever they may live in the world.

JUSTIN HUGHES: But the question is, if this is all going into private collections, is the public interest -- defined internationally…defined globally – much aligned with this private trade? I think, I think that’s the question and I think Magnus is champing at the bit to answer that one particular way. So, go ahead.

MAGNUS FISKESJO: We should not be conflating objects and objects. I have a great deal of respect for collecting and collectors but I think that every collector can also make the ethical decision individually. If I am confronted with an object the history of which is the destruction of some place, would I really want to or could I really find pleasure in it? There are objects and objects. And we should not conflate them to suggest that restricting the trade in the interest of protecting sites and monuments from looting is the same as saying no to collecting as such. I think those things have to be separate.

JUSTIN HUGHES: Jim, you wanted to comment on that?

JAMES J. LALLY: Well, just briefly. We have a show here at the Asia Society that was founded by a private collector. He had a personal view. He did his best to assemble great works of art from Asia. And he did that with a high purpose in mind of helping Americans to appreciate the great arts of Asia. And that private collection is now, much of it, in the public domain. But that which remains in private hands is still very much accessible as it is today in a special exhibition upstairs with members of the Rockefeller family having loaned things to the public. And I know many people here and many people across America, whom I have learned from by visiting their homes and having the intimate contact with works of art – a private collection doesn’t mean something in a bank vault in Zurich. A private collection is one individual who wants very much to share his enthusiasms or her enthusiasms with the world. And they are not to be said to be set against the public interest. They support the public interest. They are the public. And by the way, there are many, many, many more private buyers in China than there are public museums in China.

JUSTIN HUGHES: There are many, many excellent questions which I can’t possibly ask. So I’m going to ask one last question and I’m going to ask you all to take off your normative hats. Don’t tell us about how you’d like the world. I want you to just do a prediction on this. So pull out your crystal balls. Bottom line – this says bottom line – will U.S. museums and U.S. collectors have to return Chinese material in the near future? What types of Chinese material? So I guess I’m extrapolating from that, do you see, given the trends we’ve had with the accusations against the Getty Museum, what’s happened with the Metropolitan Museum – a recent claim of Egyptian masks in the St. Louis Museum – do you see a force building now in the next five to ten years that will start requiring U.S. museums and U.S. collectors to return Chinese materials in the near future?

MAGNUS FISKESJO: Yes, I think it’s a distinct possibility and I think that museums should be open to repatriation, especially when it makes it possible to reassemble a whole, such as a Buddha getting its head back. And I think in the interest of that, that museums need to come clean in a very concrete way – and that is to establish public records, accessible publicly, on what they possess. Because if they keep secretive there is one thing we can be sure of – if they don’t publish lists, catalog, and not the catalogs in terms of selections but complete lists of holdings, like a library -- if museums don’t do this they’ll be open to not only suspicion but the belief – especially around Asia and Africa and other disadvantaged parts of the world in the last few centuries – that they are holding on to these things and are intent on holding on to them and do not have the good intentions that they profess. So I think this is very serious.

JUSTIN HUGHES: Okay, Nancy, Magnus went from the crystal ball to his wish list a little bit. Crystal ball and wish list – will the U.S. museums and U.S. collectors have to return Chinese material in the near future – five to ten years?

NANCY MURPHY: I don’t know. I think we’re at the beginning of this discussion. And it may well be that although it seems like people are getting more extreme in their stances that as this discussion continues amongst really concerned, intelligent people, that it will have a happy ending. And there will certainly be categories of properties that should probably all go back to their original places but that that discussion could actually relax, as everybody realizes that nobody has clean hands in this and it becomes a real sort of tit for tat. Okay, well, if you are taking this back from me I’m going to take that back from you. China and other countries could suffer. So it strikes me that we could surprise ourselves and start having a much more important conversation about how to look at cultural property globally, if you will, and relax about national borders. That, I suppose, is my wish list. Fast – the next five or ten years? Not under China’s legal system.

JUSTIN HUGHES: Okay, Jim and Marc, tougher for you guys -- one a gallery owner, one a director of a museum. Will U.S. museums and U.S. collectors have to return Chinese materials in the near future? Five to ten years, crystal ball.

JAMES J. LALLY: I don’t see it as a major probability or a possibility. And I think if we look at the last ten years or the last twenty years, we have to recognize that for all the noise in the press and all the discussion of return of material that was identified as being illicitly taken out of China, it’s a grand total of two objects that I know of that have come out of American auctions and gone back to China. And the system that’s being said to be an engine of the problem is the reason why it’s gone back – because things were in the public view, things were in the public auction, things were published by galleries and gallery owners. Things were published by museums. And I agree with what Magnus has said that these things should be in the public view. No one wants these things hidden away. We want a system where the greatest number of people can have the greatest access. So I don’t see this as a serious problem, given the enormous number of issues that China has to deal with and the enormous amount of property inside China. I think that this is not going to be high on their priority list. And I would say one more thing, that people in America, whether they are Chinese collectors of Chinese descent or Chinese collectors who are Americans who have business interests in China or who have friends in China – will no doubt be voluntarily sending things to Chinese museums the way they support American museums. This is not a battle. Let’s not set up a false issue here of people hiding things, fighting over things when it is not, in fact, the case.

JUSTIN HUGHES: Okay, and Marc, bottom line, will U.S. collectors and U.S. museums -- with the possible exception of the Nelson-Atkins Museum in Kansas City – have to return Chinese materials in the near future, five to ten years?

MARC F. WILSON: It would take a major change in our legal system to do that. It would be kind of a repudiation of about a thousand years of developing law for that to happen. There is another issue. Magnus’ issue is, to me, not a legal issue. There is a moral issue. Do you think it’s better to return something that’s a fragment in order that it would be restored and then restoring its whole to its whole would be a very good thing? And I can think of at least one thing that my museum owns which might fall into that category. But others, we have been very careful to acquire legally at the time. Much of our Chinese collection was formed a very long time ago. And I can’t see how they would be subject to that sort of thing. And I would say to Magnus that American museums, art museums, have guidelines which they really will follow and must follow. And those guidelines call for us to make available electronically our entire holdings without exception. Moreover, in the case of a new acquisition in any field, those guidelines call for timely – that is to say, soon, rapid – publication so that one – and one of the reasons for doing this is that in the case of a work of art where the provenance may have a hole, which is actually not very often, that there can be a claimant to come forward. We are not trying to hide anything, as Jim said, to set up some sort of opposition. We are trying to make sure that this is in the public domain, fairly and squarely.

JUSTIN HUGHES: Okay, with that I’m going to turn it over to Professor Jo Backer Laird, my colleague at Cardozo, who has the difficult task of doing a summation as rapporteur.

JO BACKER LAIRD: Where to start. First of all, I start with the fact that I am a neophyte at this, compared to the rest of the panel. And so forgive me if that newism shows. One of the things I was struck by was, when we started, when she started discussing the Chinese request Nancy said, Let’s think legally a bit. I’d like to submit that particularly in this case, thinking legally is really thinking more broadly than that – that the law and that particularly this law, really does express a communal sense of what’s right. It really does express the discussion, the debate that was had before the implementation of the law as to what the ethical and right thing to do was. There was an enormous debate then. And the goal was to decide what were the things that needed to be protected, how they would be protected and under what circumstances they would be protected, really balancing out the different constituencies that may have been at odds with each other -- and how to balance out the interest of those constituencies and also how to balance out the interests of nationalism versus internationalism. So that at this point it’s really more than a technical, legal question as to whether or not the Chinese request meets the requirements of the law. It really does get to the ethical question. And one of the things that has struck me since I came to Christie’s -- and frankly since Ashton and others have been have been tutoring me on these issues – is how the current debate seems to forget that this debate took place before and that this law itself is the conclusion of that debate and a well thought out conclusion of that debate.

Another issue that came up a fair amount during the course of the discussion was the issue of market demand, the issue of causality. Certainly we are versed in supply and demand. And is the market demand in the United States, which the Chinese request seeks to dampen – is that really the cause of the problem that has been expressed? I am struck by the fact that sales of Chinese art in China at auction in 2005 were 1.5 billion dollars -- if we can rely on the statistic, Jim. But I can tell you that we would drool over those sorts of results at Christie’s in Chinese art. And I’d like to know where they’re getting the property. Christie’s sales worldwide in all categories in 2005 was about the same – one point five billion. I may be off by a couple of hundred thousand or a couple of hundred million. And the fact that more art went into China last year than out – if that’s the case, then one has to wonder what the real purpose of their Chinese request is. And then one is put in mind of Magnus’ comment, that this is a very current issue in the Chinese press -- where an emphasis of the stories in the Chinese press, as Magnus said, is really on what the West has done to us over time. But let’s assume for a moment that we shouldn’t be that cynical, that the request really is based on a sense that it, if granted, the law in the United States would then help to fix the problem. That raises the issue for me of is it too broad? Is the request too broad? I think that Magnus’ distinction then among the sorts of work, among different sorts of property, is really very useful. Unfortunately, that distinction is not reflected in the request and the request is really considerably broader than that – both in terms of the sorts of objects that would be restricted and the time frame, the chronological time frame.

The justification for the Chinese request has been the pillaging -- you know, we have to preserve archeological sites. I don’t think anybody really has an objection to preventing the current looting of archeological sites. But that justification can’t apply to all of the property that is on what Nancy referred to as the laundry list of property whose importation would be restricted if the request were granted in its current form. Going through the request, the requirement of protecting your own cultural property and the question of whether or not the Chinese have done enough under UNESCO to satisfy that requirement of our statute, I wonder whether connecting that requirement and the next requirement of an international restrictions -- cooperative, collaborative restrictions – really raises the issue of whether the growth of the Chinese market and the failure of the Chinese government to dampen that market – quite the contrary, apparently the encouragement of that market really is proof that those requirements – the requirement of protecting – has not been met. And if that’s the case, that they have increased their own market and are encouraging their own market -- getting back to summarizing rather than just opining – is the issue that Marc raises of whether or not this request is really hypocritical and politically motivated really comes right to the front. And if that’s true, if it is hypocritical and if it is politically motivated, is it really what is meant to be protected by our statute, by our law – which, again, I submit is our expression of what is ethically the right thing to do. Then all of this raises the issue of effectiveness. And if all of these things are not true – that the causality between the American market and looting is not clear, et cetera, are we, in fact, taking on – as Justin said – the impossible task for a purpose that will overwhelm our borders, overwhelm our customs officials, overwhelm the people at Homeland Security who, Lord knows, probably have more important things to worry about – for a purpose that will not only not, in and of itself, be effective but is really outside the purpose of the Implementation Act.

I think there is a real question, as Justin raised – and forgive me for calling you Jim before. I just realized that I did that. There is a real question that Justin raised of why China has not approached others. And I think that Magnus’ response to that is instructive. That the United States took this on as a possibility, took this on as something that we would entertain these sorts of bilateral requests. But look at the U.K. The U.K. is very narrow. The U.K. has a narrow law that protects, that prohibits the importation of sale and sale of pillaged property. But that, in and of itself, underscores how broad the Chinese request is. If it’s not just about pillaged property then what are we talking about? If it’s not just about pillaged property then what really is the justification for the request? Is there a less drastic remedy? Probably, and I think the panel maybe not agreeing on what that might be -- I think there clearly is. First of all, a more narrowly drawn request and a request that maybe really satisfies the requirements of the Implementation Act. Jim, I think, is absolutely right to say that all of us in the art market are, you know, not only obliged to, but happy, to comply with laws -- but seek out laws that are clear, seek out laws that let us know what the story is and in this case, that help us really, that deliberately define what is the cultural patrimony that the Implementation Act says we ought to be protecting and give clear rules about what might be done with that over time by collectors and museums alike. Will we someday be returning Chinese property? Well, there are some things that maybe the law can’t answer. And I think that those questions, as with the Italian case, will rest on politics, will rest on international negotiation and are hard to predict.

JUSTIN HUGHES: Okay, good job.

JO BACKER LAIRD: Thank you.

JUSTIN HUGHES: To close this evening’s symposium we have a very quick few closing remarks from Cardozo Dean David Rudenstine.

DAVID RUDENSTINE: Well, thank you very much. My job is to close the evening. And I intend to do that very quickly. But I first want to ask you to join me again in thanking the panelists for really a wonderful discussion on a very complicated issue. I want to thank our summer-upper. It’s not an easy thing to sit up here for an hour and a half and pull it all together so quickly. And I want to thank Justin Hughes, my colleague at the Law School for keeping everybody on target and actually watching the clock, which is the moderator’s main responsibility. And lastly, I want to thank the Asia Society and the American Council for Cultural Property for joining Cardozo Law School in pulling this together. So thank you all for coming.