AuthorWeiler-Esser, Julia

    This article examines China's claims against the Federal Republic of Germany for the recovery of Chinese cultural assets that came to Germany in the past, especially during colonial times. Such an analysis is timely in light of the recent 50th Anniversary of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and the 25th Anniversary of the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. (1) Both are designed to ensure, at an international level, that the national cultural heritage of all Member States is to be protected and, in the event of its illegal export, restituted.

    In fact, the awareness of the importance of national cultural heritage has increased massively (2) in many countries of the world in recent years. Among them are countries that have politically turbulent areas of the world in recent years, as they have been and are still being occupied and looted by extremist groups such as ISIS, for example, and which are now demanding the protection and return of their looted and illegally exported art treasures. Various African countries are putting forward claims for restitution with increasing vehemence (3) and increasing success. (4) Furthermore, Asian nations, especially China, attach increasing importance to the identification of national cultural assets now located in other countries and their return. (5)

    The debate has also gathered momentum in Germany. (6) The main focus of the discussion is (and has always been) the restitution of Jewish property that was confiscated as a result of Nazi persecution, but increasingly, also questions of restitution of cultural heritage in general, in particular that which came from African former colonies. (7) The controversial discussion about the redesign of the Humboldt Forum in Berlin, in the context of which the handling of the ethnological collections and the numerous exhibits from former colonies is also being discussed, caused a media sensation and aroused great interest. (8) In addition, the German Lost Art Foundation in Magdeburg set up a separate funding area in 2019 entitled 'Cultural and Collection Assets from Colonial Contexts'.9 In March 2019, the Federal Government, the states and municipal umbrella organisations also published a first joint position on how to deal with collection material from colonial contexts. (10)

    Surprisingly, however, Chinese cultural heritage in Germany and the associated (possible) Chinese claims for restitution are hardly the mentioned in this debate (11)--a circumstance that this contribution aims to counteract.

    In this debate, each country has its own approaches and perspectives, just as the loss of cultural heritage has taken its own, often different, paths. Likewise, the desire to return cultural assets is based on different motives and follows different patterns of argumentation. This text is intended to be a contribution to the current discussion on the restitution of foreign cultural property and to focus on the repatriation of Chinese cultural property that has left the country illegally for various reasons, especially during the last century (and is still leaving it). For this purpose, the legal situation of China and Germany vis-a-vis the protection of cultural assets and their repatriation will be presented and the current legal situation with its problems will be illustrated.

    In the following, therefore, the background of the two countries regarding the loss of cultural heritage and their previous positions in restitution matters will first be presented (B.). Subsequently, the current legal situation in both countries will be presented (C.) and the open problems arising from it will be addressed (D.). Finally, existing approaches to solutions will be presented and possible future paths will be pointed out (E.).


    The background, both in terms of the cultural loss of each country and the resulting policies for the protection and restitution of cultural heritage, vary from country to country and are very individual. In the global context, they can first be roughly divided into the interests of the source and market countries. (12) The first group includes countries with a rich cultural history, from which a large part of the world's cultural heritage objects originate. These include Greece, Italy, Egypt and Iraq. However, one of the most important source countries is China. (13) Many source countries are relatively poor and do not have sufficient resources to prevent the sell-off of their cultural assets.

    Market countries, on the other hand, are generally wealthy, industrialised countries that may also have a rich cultural history themselves, but whose collectors are happy to acquire the cultural assets of the source countries and have the financial means to import them. These include, for example, the USA, Canada, England, Japan, Switzerland, but also Germany. (14) In these countries the interest in the protection of cultural heritage of the source countries is often not very pronounced. (15)

    However, the distinction between source and market countries is not always clear, as some countries, such as China, have become not only source countries but also market countries in the course of globalisation and their economic development owing to the increasing interest in their own cultural heritage, combined with the financial possibilities to acquire them. (16)

    The concrete backgrounds of China and Germany will be briefly presented in the following in order to explain the legal situation, but above all to better understand the problems examined here and the possible solutions.

    1. GERMANY

      1.1 Cultural Background

      Germany has an extensive cultural heritage. (17) Many of the historical testimonies in the form of material cultural heritage have yet to be excavated. Some of these date back to the Bronze Age, many to Roman times, and they offer extensive information about life in Germany during earlier centuries. This heritage is threatened, as in many other countries, by the unprofessional and illegal 'treasure hunt' of hobby archaeologists and gold diggers. (18) As a result, there are many illegal finds, (19) which leave Germany partly illegally and the chance to evaluate them scientifically is therefore lost.

      Nevertheless, Germany imports such objects on a larger scale, either acquiring the cultural heritage of other countries, or forwarding it to other buyer countries. (20) This fact has long had an enormous influence on German legislation regarding the restitution of cultural assets, and the political debate is far from reaching a conclusive conclusion.

      1.2 Legal Background and Developments

      In Germany, as internationally, the protection of cultural heritage has its origins in military law. For a long time, the capture of enemy property was a normal aspect of warfare. At the end of the nineteenth century, however, the idea that cultural heritage was particularly worthy of protection gained traction (21) and was soon reflected in international law in the form of the Hague Conventions (1899 and 1907). These Conventions contained rules on warfare and, in addition, regulations protecting property, including cultural assets: Parties were obliged to protect their cultural heritage and to inform military opponents of its existence. (22) The looting of private (23) and public goods was prohibited (24)

      The first all-German regulation for the protection of cultural heritage was enacted after the First World War in the form of an Imperial Decree on the Export of Works of Art of 11 December 1919. (25) This Decree provided for a register of nationally valuable works of art, the export of which was restricted. This was followed on 8 May 1920 by an Imperial Decree on the Protection of Monuments and Works of Art, (26) which provided for export restrictions even independently of an entry in the aforementioned register. In 1955, a law was passed to protect German cultural heritage against export: the Cultural Property Protection Act. (27) In terms of its content, it largely corresponded to the Reich Decree of 1919 and, in particular, took account of the "cultural sovereignty of the Lander" (28) introduced by the Grundgesetz (the Constitution) by leaving it to the discretion of the Lander to decide whether and which cultural objects should be entered in the register of nationally valuable cultural property.

      The enormous destruction brought about by the Second World War once again highlighted the need to protect cultural heritage and led to the drafting of the Convention for the Protection of Cultural Property in the Event of Armed Conflict on 14 May 1954. The still young Federal Republic of Germany was one of the first signatory States. (29) It is the first global international treaty explicitly dedicated to the protection of cultural heritage and requires Contracting Parties to respect the cultural heritage located on their own territory or on that of other Contracting Parties. (30)

      In 2007, the Federal Republic of Germany also ratified the 1970 UNESCO Convention on measures to prohibit and prevent the unlawful import, export and transfer of ownership of cultural property (31) which reflects the definition of cultural property contained in the Hague 1954 Convention. (32) Furthermore, the role of each State in the definition of cultural property is made clear in Article 1 of the 1970 Convention:

      For the purposes of this Convention, the term "cultural property" means property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science [...]. This broad definition is intended to maintain the dynamics of the concept of cultural heritage and to give each State Party the opportunity to bring its national understanding of cultural heritage to bear. (33)

      Germany uses...

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