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YSL and China

I have commented about next week's sale of the Yves Saint Laurent and Pierre Bergé collection at Christie's (Paris) next week. Dave Itzkoff, writing for the New York Times, reports that China has called for the return of two pieces ("China Asks for Return of Relics in Laurent’s Collection", New York Times, February 12, 2009). This repeats a story carried initially on Bloomberg (Eugene Tang and Dune Lawrence, "China Urges Return of Saint Laurent Sale Bronzes", February 12, 2009).
The two animal-heads -- a rabbit and a rat -- were severed from a water fountain at Beijing’s imperial Summer Palace when British and French troops plundered and burned the palace in October 1860.
The pieces are lots 677 and 678.

Christie's have also issued a statement (covered by Bloomberg):
The auction house said last month that “each and every item” in the Berge Collection has a clear legal title. Today’s statement from Christie’s reiterates that, saying the objects, “including the fountainheads, have a clear and extensive history of ownership.” Proceeds from the sale will help set up a foundation for AIDS research.

Comments

DR.KWAME OPOKU said…
That there are difficulties on the way to recovery of the stolen/looted artefacts cannot be denied but the non-retroactivity of the 1970 UNESCO Convention or the 1995 UNIDROIT Convention is no argument against pursuing the case for restitution. Non-retroactivity does not mean or imply approval. The real question here is whether this atrocious act of aggression and looting was ever approved by International Law and not by a few powerful States, notorious for acts of aggression and spoliation. I would encourage the Chinese to pursue vigorously their claim which would give us also a recent judicial view of a shameful, aggressive practice of a few States. The judges must eventually decide whether there were no rules of law, in Chinese, English and French Laws, as well as in International Law which prohibited the unlawful taking away and the damage or destruction of the property of others. Whether the laws of any particular country do or do not prohibit such wrongful dealings with property is not a matter to be settled with reference to the 1970 Convention.
There may be eventual questions of statute of limitation but that is an issue which must be determined by the judges as a preliminary issue. Above all, they must determine whether the ordinary rules of limitation, enacted for the usual domestic situations apply at all in such cases.

The judges would have to consider very carefully the meaning and extent of the provision of Article 10(3) of the UNIDROIT Convention which reads as follows: "(3) This Convention does not in any way legitimise any illegal transaction of whatever which has taken place before the entry into force of this Convention or which is excluded under paragraphs (1) or (2) of this article, nor limit any right of a State or other person to make a claim under remedies available outside the framework of this Convention for the restitution or return of a cultural object stolen or illegally exported before the entry into force of this Convention."
Lyndel Prott comments on this provision as follows: "This paragraph was the result. again, of the working group's compromise and provides that the UNIDROIT Convention does not legitimise any prior illegal transaction, nor restrict a State from claiming back such items, in private law, by bilateral negotiation, inter-institutional arrangements or through the UNESCO Committee mentioned above". Prott, p.82, Institute of Art Law, 1997.

Most Westerners, including lawyers are allergic to any claims for restitution from the colonial past. They must ask themselves about their instinctive negative reactions to such claims without subjecting the claim to rigorous examination of the law and all the background to such claims. Laws must be interpreted in accordance with the objectives of the law and not necessarily in the interest of the powerful. Would we accept a conclusion that the laws of France, Britain and United States permitted the wrongful treatment of the property of others before the 1970 UNESCO Convention and the 1995 UNIDROIT Convention?
Kwame Opoku.

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