Two of twelve bronze animal sculptures, representing the head of a rat and the head of a rabbit, which were part of the zodiac fountain of the Imperial Summer Palace of Emperor Qianlong in China and looted by British and French forces during the Second Opium War of 1860, are to be auctioned by Christie’s in Paris on behalf of the estate of the designer Yves St. Laurent and his partner, Pierre Bergé. The proceeds of the auction, which includes over 700 art works belonging to the estate, will be used to fund the Yves Saint Laurent Foundation. Chinese authorities have been concerned about the sale and would like to recover the sculptures without paying the presale estimate of $10-13 million for each sculpture. Chinese authorities also view repurchasing the sculpture as a tacit recognition that title to the sculpture could have legitimately passed to the current possessors.
A group of Chinese lawyers, representing the Association for the Protection of Chinese Art in Europe, sued in French court to prevent the auction from going forward. It is difficult to see what would be the legal basis for such a suit. In news reports, Chinese officials have been quoted as citing to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and the 1995 Unidroit Convention on Cultural Property. While both conventions clearly state that valid legal claims that predate the entry into force of these conventions are not negated by the convention, neither convention has any retroactive effect.
In addition, although France has signed the Unidroit Convention, it has not yet ratified it. Furthermore, French law recognizes the good faith purchaser doctrine—meaning that after the passage of time, one who purchases stolen property may nonetheless obtain title to it. Given the long period of time, close to 150 years, since these sculptures were stolen, it did not seem likely that redress could be obtained in court. The Tribunal de Grande Instance in Paris rejected the claim today and the sale is slated to go forward tomorrow. It remains to be seen whether the auction achieves the high presale estimates in this economic climate.
This case demonstrates the inability of international law, because of the fundamental principle of non-retroactivity, to correct what many would view as historical injustices. In some cases what would be considered today to be an injustice or illegal was not illegal at the time the act was carried out. In other cases, the passage of time has rendered a claim invalid. It is worth focusing on contemporary issues of looting and theft—as China has done with the new bilateral agreement with the United States under the UNESCO Convention to restrict the import of certain categories of undocumented archaeological materials.
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