Import ban on Chinese art creates an uneven playing field
Until China holds up its end of the agreement, trade restrictions will unfairly harm US museums, collectors and art dealers
By Kate Fitz Gibbon . Web only
Published online: 01 March 2014
On 13 January, the US renewed an agreement with the People’s Republic of China banning the importation of ancient art from China into the US. At a closed-door meeting of the Cultural Property Advisory Committee, a handpicked group dominated by anti-trade attorneys and archaeologists listened briefly to public input, then worked in secrecy to approve an import ban covering virtually all archaeological materials from the Peoples Republic of China, dating from the Paleolithic Period through the end of the Tang Period. It also covers more recent monumental sculpture, minor objects and Chinese coins. The secret committee process has been called by a former committee chairman, Jay Kislak, “absolutely, completely un-American”.
Import agreements are executed under the Cultural Property Implementation Act. The law allows embargos against foreign cultural property only if other important market nations also act—or if US import restrictions alone would significantly reduce pillage. The source country must actively protect its cultural property, there must be no less drastic means available to protect cultural heritage, and the agreement must be “consistent with the general interest of the international community in the exchange of cultural property among nations”.
None of these conditions exist in China. There is no evidence that US import restrictions have had the slightest effect on China’s internal cultural losses or that cultural exchanges have improved over the last five years. China is capable of enforcing draconian laws against its own citizens, but while it harshly punishes small-time looters it encourages the elite-run domestic trade. Chinese ministries continue to demand high fees for tightly controlled, often highly censored, travelling exhibitions. The only result of the ban is that US citizens and institutions cannot import or collect items traded freely in other parts of the world, including in mainland China and Hong Kong.
In fact, China has the world’s fastest growing and largest internal art market—focused entirely on Chinese art. The Poly Group, run by the former Peoples Liberation Army, sources art in New York for its auctions. The behemoth China Guardian Auctions specialises in the sale of ancient coins. Chinese buyers also dominate the global market. Sotheby’s, Christie’s, and Bonhams stated that in 2012, more than 70% of the Chinese art sold worldwide at auction was purchased by buyers in China, Hong Kong, Macao and Taiwan.
The Chinese government’s actions mock the committee’s attempts to condition the embargo and fit it into the parameters required by US law. They ignore the undertakings sought during the 2009 agreement: China would stop looted or stolen archaeological materials from entering Hong Kong or Macao with the goal of eliminating illegal trade there; would license the export of certain antiquities; and, since US museums are prohibited from acquiring looted or illegally exported artefacts, Chinese museums would also refrain from acquiring them. Instead, the major Chinese auction houses have increased active trade in antiquities and facilitated the growth of Chinese museums fed by the trade. The trade in Chinese art within China is at least 50 times what it is in the US.
The government has not established regulations over the art market in Hong Kong or Macao. While export is permitted for certain items in mainland China, no official proof of lawful export is provided. Export is permitted from Hong Kong and Macao, which remain Free Trade Ports, but again, without documents that would enable a US importer to prove lawful export. Meanwhile, the Chinese government turns a blind eye to the illegal copying and sale of US “cultural property”—copyrighted movies, music and patented technology.
The embargo on Chinese art deprives US museums and the public of opportunities for study, research and a better understanding of the cultural heritage of millions of American citizens. Import restrictions should be enacted as Congress directed—when they will ameliorate looting and protect archaeological sites. The 2009 agreement with China should have been suspended years ago. The renewal of the embargo merely perpetuates an uneven playing field in which US museums, collectors and art dealers are harmed and China’s elite-run art businesses thrive.
Kate Fitz Gibbon is a New Mexico lawyer specialising in art law, the editor of Who Owns the Past, Cultural Property, Cultural Policy and the Law, 2005, and the author of six books on Central Asian art
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