Abstract
The protection of cultural heritage is increasingly shifting towards favouring the return of cultural property to its people of origin. Evidence of this shift can be found in a more intentional distinction between cultural property rights on the one hand, and traditional rights in rem on the other; the strengthening of international cooperation; as well as the reconstruction of traditional doctrines. The shift can be seen in a series of changes in China's legislative and judicial developments, as well as international involvement in the resolution of cultural property disputes. The revised Cultural Relics Law of 2024 and the judicial opinions of Chinese courts indicate an attempt to ensure justice for people of origin. China's practice in global governance by promoting the restitution of protected public goods through international and institutional cooperation also deserves to be assessed. In consideration of China's role in achieving global justice for cultural property and heritage, these practices have been seen accelerating the paradigm shift, along with an innovative proposal for global solidarity, while the country is still confronting challenges as it is transitioning from that of a traditional source state to more nuanced roles in the global circulation and regulation of cultural property and heritage.
Introduction
The movement and exchange of artworks between states by commercial or diplomatic means has contributed to dialogue and mutual appreciation of ancient civilizations. 1 However, modern history has also witnessed a ‘massive unidirectional flow’ of cultural and historical objects, 2 by means of war, colonial looting and/or illicit trafficking, which has resulted in a tremendous loss of cultural identity for the source states. According to UNESCO, more than 1.6 million lost Chinese cultural objects are held in 200 museums across 47 countries worldwide, and millions more are in private collections, which are ten times larger than those in China, 3 highlighting that China is among the states that have suffered the most serious losses. 4 However, these statistics are dated. Exact numbers remain unknown. It is claimed that people who try to locate their roots in the artefacts of their own culture have no choice but to travel abroad to study, see and interact with them in foreign museums. 5
Clarification of the complicated context of the loss of cultural treasures from China also calls us to examine the historical and archival records pertaining to the global separation and movement of cultural properties from their respective communities of origin and their subsequent retention in Western museum spaces or private storage. 6 Cultural objects have been lost mostly through war and colonial looting. Ever since the late nineteenth century, a significant number of cultural properties from the imperial collections or private households have been looted or reduced to ruins as a result of occupation wars, such as the two Opium Wars and the Eight-Power Allied Forces Invasion War (also known as ‘the Boxer War’). 7 Military or punitive expeditions undertaken at the beginning of the twentieth century have also exacted a considerable toll. Colonial powers initiated ‘oriental exploration’ and ‘cultural expeditions’ along the ancient Silk Road to East Asia, and these initiatives thrived on unprofessional excavations and fraudulent trade with the local population. 8 Despite intermittent periods of relative peace, illicit activities such as illegal excavation, smuggling and trafficking continue unabated. The considerable financial benefits of the art market, coupled with the inherent uncertainty of the global economy, have turned cultural property and heritage into primary acquisition targets. 9
The establishment of a contemporary legal apparatus for the preservation of cultural heritage in China can be traced back to the early years of the twentieth century. In the face of significant losses of cultural properties caused by the invasion of Western powers and the weakening of the internal rule of law, the Chinese populace gradually began to develop a modern sense of ‘cultural identity’ or ‘cultural sovereignty’. 10 This shift in perspective was reflected in legislation through the incorporation of the comprehensive concept of ‘national cultural heritage’, emphasizing the collective claim of the abstract, united community, ‘the Chinese nation’, to their cultural heritage. 11 Following the founding of the People's Republic of China (PRC), there has been a considerable enhancement in legislation and administrative policies designed to combat illicit trafficking of cultural property, 12 as well as noteworthy accomplishments in the recovery and restitution of cultural property misappropriated and taken abroad. 13
Globally, contemporary international law has been developing in conjunction with cultural heritage law, 14 and the state practices in the field of return and restitution of cultural properties to their states of origin. Consequently, the international legal systems for the protection of cultural heritage are undergoing changes and taking new directions, in terms of doctrines, legislation and restitution practices. There are several indications of these emergent trends. Primarily, there has been a notable dissociation of cultural property rights from those relating to general goods within the framework of domestic civil law systems. 15 This dissociation is characterized by an increased prioritization of the interests of the state or community of origin. Moreover, a notable escalation in the utilization of bilateral or multilateral mechanisms has been observed among states and other institutions. This phenomenon signifies a substantial paradigm shift within the domain of the international rule of law for the adjudication of cultural property disputes. The new paradigm is said to depart from the fundamental principles of civil law, which are centred on the traditional ownership rights and the safeguarding of transactions, to a re-evaluation of the historical and cultural significance of the cultural property in transnational disputes. 16
However, the actual extent and implications of this paradigm shift still remain to be seen. This noted, recent progress made in the implementation of the principle of the rule of law for the protection of cultural property and heritage in China does provide some validation for its gradual formation, or at the very least, demonstrates the increasing importance of this sort of state practice. As this article intends to demonstrate, the rule of law for cultural property and heritage in China is undergoing significant developments and will continue to play a positive role in facilitating the global pursuit of the fair resolution of cross-border disputes in this area. In this context, the present study seeks to contribute to the ongoing discourse on the evolution of the rule of law for transnational cultural property justice. It does so by offering a nuanced analysis of current legal practices in China, which are increasingly influenced by the evolving international philosophy of restitution, a phenomenon that should be elucidated.
This article foregrounds the character and performance of the new paradigm of transnational cultural property dispute resolution by collecting recent national and international practice in Part II. The most recent legal developments in the field of cultural property restitution in China and their implications for domestic law reform are set out next in Part III while Part IV examines China's participation in relevant instruments of international law, one of the central contributions of this study. The conclusion provides an evaluation of China's legal practice and what remains to be achieved in terms of a achieving a true paradigm shift in this area.
A Paradigm Shift in the Law of Restitution?
The term ‘paradigm’ in scientific research is derived from Thomas Kuhn's philosophical perspective on the nature of scientific revolutions. It refers to a collection of theories, methods, rules and standards that are commonly accepted by a given scientific community over a specific period of time. 17 The ‘paradigm’ determines the direction of research and the manner in which a scientific question is to be resolved. In the field of research on the resolution of transnational cultural property disputes, one prevailing paradigm is to a certain extent centred on the determination of the ‘legitimacy of possession’. It is exemplified by disputes concerning the legalization of the possession of cultural property from contexts of colonial plunder and war looting, 18 as well as the ‘priority of the market’, where the movement of cultural property is treated in a manner analogous to that of ordinary goods, ending up with illicit trafficking of cultural property and title laundering. 19 However, in recent years, a new paradigm centred on historical justice, cultural significance and ethical responsibility has been spreading globally, with increasing importance attached to the claims of states and communities or groups divested of their cultural property and heritage. The discourse surrounding the repatriation of culturally significant artefacts that have been appropriated or illegally exported, as well as on their removal during the colonial period, marks the shift not just as ‘a brick in the wall in the century-long dispute over return, but [as] a seismic shift offering new prospects and lenses’. 20
Domestic Law: Separation from Traditional Rights In Rem
In the disputes over the transnational claim for the return of illegally removed cultural property, the question of the conflict-of laws is one of the main uncertainties faced by the domestic courts when deciding which law is the applicable law and who the real owner of the disputed object is. The choice-of-law rules to govern common property rights, known as lex rei sitae, have been prevailing in determining the law on the ownership of objects. 21 This doctrine places significant emphasis on the traditional ‘in rem’ rights rather than on the distinctive value these assets hold for their original owners, fostering the phenomenon of ‘title laundering’, whereby the selection of a particular legal jurisdiction enables the circumvention of established ownership rights. 22 The ambiguous nature and toothless enforcement of certain regulations, 23 as well as the non-retrospective nature of and limitation periods in current legislation, serve to block claims relating to historical colonial violence, which are doubted to be fairly settled with reference to the law of the place where the object ended up. 24 Hence, the shift in the rule of law on cultural property could therefore be expected from the conflict rules in the domestic legal system, and also from the substantive law pertaining to the management of cultural property removed in complex circumstances.
Conflict of Laws is a pivotal scientific discipline for the resolution of transnational cultural property disputes, given its remit to mediate conflicts between different legal systems in the field of transnational private law. 25 Nevertheless, the selection of legal provisions within the court of jurisdiction does not fully address the particularities of diverse legal relationships. In certain instances, it can impede the fulfilment of collective societal interests. The mechanical method of determining the governing law according to Conflict of Laws theory has had a detrimental effect on the protection of cultural heritage and detracts from its historical and cultural background. This problem has become increasingly acute since the twentieth century and Conflict of Laws scholars have yet to provide a satisfactory response to it. 26
It is a well-established principle in the area of conflict of laws that, in cross-border disputes concerning the ownership of movable property, the applicable law is that of the jurisdiction where the property is situated, commonly referred to as the lex rei sitae. 27 By extension, this principle has often been applied to rights in cultural property in the same manner as to ordinary movable objects, with legal analysis centring on the physical location of the object. However, this approach tends to overlook or even disregard the object's cultural and historical context, as well as its significance to the state of origin. 28 Consequently, the legislation in question engenders an environment conducive to the actions of thieves and art dealers, as it provides them with the opportunity to select the law that is most favourable to their transactions and ridding title of defects, due to its hard and mechanical ‘seat’ which is designed to achieve the fantasy of ‘conflict justice’. 29 In order to circumvent this outcome, it is imperative to undertake timely adjustments to the theory in order to fulfil its original function of harmonizing the conflict of laws among states. 30
Attention has been directed to the distinctive value of cultural property in order to determine the applicable legal rules. Symeon Symeonides is one of the author who have written on the choice-of-law issues in disputes over such special movables. His work distinguishes itself from the general choice of laws rules, using conflict of laws tools to provide appropriate remedies to the victims who lost their cultural properties involuntarily. 31 Special conflict rules proposed to determine the governing law of the ownership of stolen cultural property can be regarded as the fundamental consensus that has emerged from this debate: the application of the law of the state of origin as a starting point and the subsequent consideration of the principle of closest connection and the protection of the bona fide holder 32 with the aim of achieving balance among stakeholders.
In the context of contemporary domestic law reform and judicial practice, the choice-of-law rules pertaining to the valid transfer of cultural property are undergoing a gradual distinction from the conventional application of the lex rei sitae. This process is concomitant with the exploration of the grounds for the implementation of a novel alternative choice-of-law rule, namely the lex originis. 33 It has already been reflected in the legislation of certain states, including Belgium and Bulgaria. 34 Although the justifiability of such a novel rule is still surrounded by problematic constellations, 35 international restitution practice has been observed to demonstrate a tendency to apply the law in a manner that favours the return of cultural property to its state of origin, 36 together with more alternatives for conflict rules such as narrative norms in transnational cultural property claims. 37
Compared to the restitution of stolen or illegally exported cultural property during peacetime, the matter of the return of cultural property removed as a result of historical foreign occupation or colonialism faces more complicated dilemmas in domestic law. It is evident that current international conventions and documents pertaining to the return of cultural property, which were predominantly developed in the aftermath of the Second World War, 38 are not particularly pertinent to the return of cultural property from a colonial context. Conversely, the intricacies inherent in colonial history, coupled with the heterogeneity in the methods of cultural property removal and transfer, frequently render their legitimacy ambiguous. This, in turn, engenders challenges in achieving a comprehensive international consensus. Domestic legal issues include margins of interpretation of the applicable law resulting from the non-retroactivity of laws and the entrenched influence of colonial legal systems. 39 Furthermore, the laws of the possessor state, such as the law of the inalienability of public collections, intertemporal rule and statutes of limitation present legal obstacles to such claims. 40
In the global wave of decolonization, the introduction of special statutory initiatives by certain states supports the restitution of cultural property taken during the colonial period. For instance, France enacted a special decree on the return of selected Benin objects to overcome the inalienability of public collections, 41 and Belgium amended its legislative framework. 42 However, policies and actions concerning the return of unethically removed cultural property and heritage during the colonial era are primarily based on moral and relational considerations rather than a serious discussion on the lawfulness of the historical takings. 43 They proceed case-by-case, or in accordance with a designed scale of collection, while the legal obstacles to returning such cultural properties remain to be effectively resolved. Nevertheless, it is noteworthy that legislatures and policy makers are increasingly aware of the need to reconsider unethical removals, though there is yet to be a substantive shift in relation to this special kind of cultural property.
International Law: Strengthening Cooperation
At a time when there are an increasing number of challenges to public security and cultural sustainability, the importance of international cooperation is being increasingly emphasized. In the domain of transnational cultural property disputes, cooperation, particularly the dialogue between the states of origin and the states of possession, is achieving substantial progress in facilitating the return and restitution of cultural property to its state of origin. As posited by Yannick Lintz, the president of Paris’ Musée Guimet, ‘in a world of tension and conflict, it's very important to show the story of dialogue between Asia and the West.’ 44
The implementation of reforms grounded in prevailing multilateral mechanisms is ongoing. In 2021, the 76th session of the General Assembly of the United Nations adopted Resolution 76/16 on the return or restitution of cultural property to the countries of origin, underscoring the importance significance that states of origin ascribe to the return or restitution of cultural property of fundamental spiritual, historical and cultural value to them. 45 In 2022, the final declaration of the UNESCO World Conference on Cultural Policies and Sustainable Development called for an open and inclusive international dialogue for the return and restitution of cultural property. 46 Furthermore, the 2024 Pact for the Future and its Annexe Declaration on Future Generations, adopted by the General Assembly of the United Nations, emphasized the undeniable importance of cultural properties in the context of intergenerational transmission and sustainable development, which should be returned to their countries of origin. 47
In regard to the reform of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970 UNESCO Convention), the Model Provisions on the Prevention and Fight Against the Illicit Trafficking of Cultural Property adopted by the 8th meeting of state parties in 2025 will provide a template for states to strengthen the implementation of the Convention. The UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation (ICPRCP) is currently engaged in the formulation of a recommendation for the timely return and restitution of cultural property that has been lost as a result of colonial or foreign occupation. Despite the absence of a binding effect, these instruments assume a significant role in the realm of soft law. As awareness of the importance of preserving historical and cultural memory, as well as combating smuggling crimes, continues to grow, international soft law is increasingly integral to the lex culturalis. 48 In circumstances where treaty mechanisms are superfluous or insufficient, soft law serves as a viable alternative. The ‘law begins everywhere with custom’ maxim underscores how non-binding standards can evolve into enforceable provisions, 49 stressing that soft law should not be undervalued or disregarded.
Provenance research, an arduous and intricate undertaking, is best tackled by transnational cooperation. The task of elucidating the story of a cultural property, including how it departed from its state of origin and became part of museum collections in another state, is more challenging than simply designating it as an illicitly trafficked object. 50 Not only has the object with documentation of its place of origin and its acquisition history been a starting point for restitution claims by the state of origin, 51 but it has also led to the proliferation of confirmations that are intended to dispel any doubts about theft or looting. 52 Efforts to enhance cooperation in provenance research and facilitate dialogue on the repatriation of cultural property from colonial contexts have been reinforced bilaterally and for particular restitutions. Provenance research has contributed to an increase in the number of agreements on return or collaborative maintenance between states of collection and states of origin. 53 This development highlights the growing trend of cooperation between parties.
Theoretical Doctrines: Reconstruction of the Entrenched Dichotomy
Conflict of Laws theories do not create universal value per se. Their mission is to reconcile competing values, thereby identifying an optimal solution to the conflict of interests. 54 Under this premise, the traditional mechanical method of choosing the applicable law fails to meet the requirement of value consideration. The more flexible means, such as the analysis of interest, are therefore required to make up for this failure. These means allow for the integration of new value proposed by different doctrines on the movement of cultural property into the choice of law process, presenting a battleground of competing and antithetical ideas as well as fertile soil for value rationality. 55
The dichotomy between cultural internationalism and nationalism in relation to cultural property has been shown to be false and far from universal value. 56 At the intergovernmental level, cultural internationalism is fundamentally a form of nationalism in disguise, with the aim of protecting the state's own collectors and their collections. 57 International restitution practices strive to safeguard national cultural heritage while fostering international cooperation and legal exchange based on mutual respect. They weigh the interests of various shareholders, including museums, collectors and communities. 58 Although the narrative of cultural property law used to be ‘a Tale of Two Cities’, the lines between binaries are gradually becoming more indistinct, 59 and it should therefore be admitted that there has always been a mixture in cultural heritage policy. 60
As demonstrated by contemporary domestic and international practices, the circulation and restitution of cultural property recognize the legitimate rights and interests of the state or community of origin by controlling transnational circulation of cultural properties and ensuring the territorial attachment to its cultural property. Universal values cannot diminish national or communal cultural interest and diversity, whose ultimate purpose is the establishment of global solidarity. 61
It is also imperative to acknowledge the fallacious and ambiguous nature of the conceptual distinction between ‘state of origin’ and ‘state of market’. The terms have been employed to define, among other things, the domestic legal system on protection and the control of the circulation of cultural property, and have been influential in shaping the art market and discussions about restitution. 62 However, the distinction is drawn with reference to the objective geographical movement of the items within transnational cultural property flows and the formation of legal relationships, technically for deciding the applicable law.
A certain degree of tension is observable between source states and market states, but in the era of globalization, states export and import art and cultural objects. Any state, whether a historically colonial power or a newly independent country rich in cultural heritage resources, has the potential to become an active player in the global art market. In certain instances, the roles of the state of market and the state of origin are indistinguishable. 63 Is it possible for China to achieve legal consistency by repatriating cultural property illegally imported into its territory, just as it demands the return of its cultural property from other states?
A new paradigm is contingent on a transition from a ‘possession-oriented’ to a ‘culture-oriented’ approach, the viability of which is predicated on the harmonization of domestic law and the strengthening of international cooperation on the rule of law. The separation of disputes relating to cultural property from traditional property disputes and the application of special domestic or international law rules promote narratives that support research into the provenance of colonial collections that have been removed or trafficked illicitly. 64
However, it must be acknowledged that a deep-rooted adherence to traditional doctrines and legal norms continues to present a significant challenge to contemporary cultural property claims. It is acknowledged that the reasonability and predictability of this new paradigm are yet to be observed and improved upon through further efforts. 65 The purpose of this article is not to prove that a paradigm shift has occurred by gathering and sorting different state practices, but rather to focus solely on Chinese state practice. In sections III and IV, the response and engagement of Chinese domestic and international legal practice will be investigated more closely.
Reforming of the Domestic Legal Regime
In response to the evolving global context and the shifts occurring within the domain of international cultural property law, China's domestic legal framework has undergone a process of fortification. This enhancement in the nation's legal infrastructure is aimed at countering the illicit transnational movement of cultural property and the trends regarding international restitution.
Legislation
The primary reforms of Chinese law on the restitution of cultural property and heritage can be categorized into two distinct aspects. One is the revision of the special law on the protection of cultural property; the other is efforts to better support international civil litigation with a view to the resolution of transnational cultural property disputes. The former can be referred to the revision of the cultural relics law of China, while the latter could invoke the law on state immunity and international civil procedure.
Cultural Relics Law
Lawmakers voted to pass the Law of the PRC on the Protection of Cultural Relics (Cultural Relics Law) during a session of the National People's Congress Standing Committee in late 2024. The revised Cultural Relics Law took effect on 1 March 2025. 66 The Law establishes a mechanism for the return and restitution of cultural property, including international cooperation on the recovery of China's cultural property and the restitution of cultural property illegally removed from other states, declaration of rights to the claims for the return of cultural property from colonial contexts, and the prohibition on trade of lost foreign cultural property. There are three novel provisions worth mentioning.
The general legal mechanism for the return and restitution of cultural property is established by the first paragraph of Article 81 in the revised Cultural Relics Law:
The state strengthens international cooperation in the repatriation and return of cultural relics. The administrative department of cultural heritage under the State Council shall, in accordance with law, work with the relevant departments to repatriate the cultural relics lost overseas due to theft or illegal export; the department shall return the foreign cultural relics illegally entering the territory of China in cooperation with relevant countries on the basis of relevant treaties, agreements, accords or the principle of reciprocity.
This provision delineates the fundamental tenets of international cooperation in the restitution of cultural property, establishes a coordination apparatus among domestic agencies, and elucidates the principle of observing international obligations or exercising reciprocity. The coordination mechanism for the recovery and return of cultural relics is overseen by the National Cultural Heritage Administration (NCHA) of China, in collaboration with the relevant entities, including but not limited to the police force, customs, and the Department of Foreign Affairs. Despite the absence of an express designation in this paragraph of the ‘standing to sue’ of the parties in disputes over the return of protected cultural property, it may be interpreted as implying that, for those protected by the state under Article 2 of the Cultural Relics Law, the NCHA is a competent body to make such claims. The scope of its authority extends beyond the confines of state-owned cultural relics, as explicitly delineated in Articles 5 and 6.
This provision also acknowledges China's dedication to combating the illegal import of foreign cultural property and facilitating restitution. This commitment is anchored in its international law obligations, as established through various international treaties, agreements and protocols of which China is a signatory. As was predicted in the 1990s, ‘China is the final frontier for the art and cultural property trade’. 67 The country is gradually assuming characteristics of a market state as its art market expands, becoming increasingly susceptible to a destination state for stolen or illegally exported cultural property. The revised law responds to this development, for which the principle of reciprocity serves as a prerequisite. When cultural property enters China unlawfully or illicitly from a foreign state, China is obligated to undertake measures to facilitate its restitution, in collaboration with the exporting state, which is typically the state that signed the relevant international treaty, agreement or protocol, including an international convention or bilateral agreement. The scope of cooperation has been extended from what is provided for in the treaty to any action necessary for the trans-border return of the object in question. This may include the application of the cultural property law of the requesting state, mutual recognition and enforcement of judgements, and so on. In the absence of an international agreement, cooperation between China and the state of export remains possible based on the principle of reciprocity, while the extent of reciprocity remains uncertain. The restitution mechanism may need to consider the domestic law of the requesting state regarding the return of illegally obtained cultural property in that state, as well as the precedents of cooperation in the restitution of cultural property between China and that foreign state.
Article 81, para 2, rules out the application of statutes of limitation in requests for the restitution of Chinese cultural property from colonial contexts. In accordance with this declaration, ’The state reserves the right to repatriate the cultural relics lost overseas due to theft or illegal exit, and such right is not subject to the statute of limitations’. Statutes of limitation have invariably represented a significant legal hurdle in restitution claims involving cultural property advances by states of origin within domestic civil legal frameworks. Diverging statutes of limitation across states provide art theft and black-market dealers with the opportunity to transfer the title of illegal cultural property by selecting the jurisdiction of the transaction, transfer or loss. 68 Cultural property that has been acquired through clandestine channels is not usually put up for public display for an extended period. Following this, the possessor of the disputed object will claim permanent ownership title, 69 thereby ‘legitimizing’ the transfer and possession of the stolen cultural property. This process places the original owner at risk of permanently forfeiting their right to claim the return of their own cultural property. 70
The harmonization of conflicting limitation statutes between domestic civil law systems is a key objective within the private law dimension of international legal frameworks. In accordance with Article 3 of the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (1995 UNIDROIT Convention), apart from the general time limitation for a claim for restitution of the stolen cultural objects, State parties are at liberty to declare that a claim for restitution of a cultural object ‘forming an integral part of an identified monument or archaeological site, or belonging to a public collection’ is not subject to time limitations. The term ‘public collection’ is defined under Article 3(7); ownership status and the public nature of the institutions listed play a decisive role, making it impossible to include collections that are exhibited on long-term loans in public museums based on agreements with private collectors. 71 Given that many market states are reluctant to ratify the Convention, 72 the application of time limitations remains indeterminate.
The specific time limitation stipulated in Article 81, para 2, of the revised Cultural Relics Law is intended to supersede the constraints imposed by statutes of limitation in claims for the return or restitution of cultural property that has been either stolen or illegally exported from China, including those removed during the colonial era, and even if privately owned.
In the context of the recovery of cultural property that has been illegally obtained, the time limitation exemption stipulated in the special provision is consistent with Article 196 of the Civil Code of the PRC. 73 However, the specific application of this exemption is determined by the choice-of-law rules in the law of the forum. It is only applicable when the governing statute of limitations is Chinese. Uncertainty also prevails with regard to the question of whether the pursuit of cultural relics that have been stolen or illegally exported prior to the enactment of the revised Cultural Relics Law is likewise exempt from time limitations. When considering the purpose behind the provision, it can be argued that retroactive effect is a prerequisite for safeguarding its legal effect. Article 81, para 2, asserts China's stance in robust terms while concurrently maintaining the necessary scope to reclaim cultural property extracted prior to the implementation of international conventions. This assertion is particularly salient in the context of cultural property lost from colonial backgrounds, whose current whereabouts or possessors remain uncertain.
Another significant development is the clear prohibition on the trade of lost cultural property claimed back by foreign states. In accordance with Article 68, a series of items are subject to prohibition from trade in China. This includes ‘lost cultural relics notified or announced by foreign governments or relevant international organizations in accordance with relevant international conventions’. In cultural property law, private rights over protected cultural property are typically circumscribed by limitations on the freedom of transfer, distinguishing them from those of ordinary goods. 74 The transfer of such cultural property without requisite authorization may be rendered invalid, not to mention that the title may be defective. The invalidation of the transaction of stolen cultural property has been proposed by the UNESCO-UNIDROIT Model Provisions on State Ownership of Undiscovered Cultural Objects. 75 The provisions are applicable to undiscovered cultural objects, and the drafters also acknowledge that the invalidity of the transnational transfer of stolen objects will only be effective if courts in the market state recognized such a rule, or if the market state were to adopt such a rule. As outlined in Article 68 of the revised Cultural Relics Law, China has now adopted this position as a potential destination state. The application of inalienability as defined in the Model Provisions is not limited to stolen objects but also extends to a wide range of ‘lost cultural relics’ for which a clear definition is required.
Article 68 prohibits trade in cultural property in respect of which a notification or announcement by foreign governments or international has been issued. This means that a private party cannot invoke this provision to assert a general prohibition on the trade of a specific cultural object. However, such a party may nonetheless seek a preservation order from a domestic court to prevent the transfer or removal of the object pending further legal determination. 76 Furthermore, any such notification or announcement under Article 68 must be issued in accordance with the relevant international conventions to which China is a state party. In the case of announcements by an international organization, inclusion in internationally recognized databases such as the INTERPOL Stolen Works of Art Database may carry significant legal weight. Such registration can serve as a basis for Chinese regulatory authorities to substantiate a prohibition on trade. Moreover, art dealers and other market participants are expected, as part of their due diligence obligations, to consult reasonably accessible public registers of stolen or illicitly trafficked cultural property. Finally, it could be predicted that individuals involved in the trade of foreign cultural property prohibited from being traded will be punished accordingly. 77
Law on State Immunity
A distinguishing feature of the establishment of contemporary cultural heritage legislation is the acknowledgement of cultural heritage as a vital component of a nation's identity or territorial integrity. 78 Consequently, states have a substantial stake in the outcomes of restitution claims for illegally removed cultural property. When a state (or government) is the relevant stakeholder, the theory of state immunity is indisputable. A state may institute litigation or be a defendant. 79
The Chinese government's customary approach of maintaining absolute immunity has typically resulted in its restraint from initiating lawsuits or engaging in legal proceedings in foreign courts. This legal position has proven to be a significant hindrance to the government's execution of its restitution policy and practice. Following the promulgation of the Foreign State Immunity Law of the PRC (FSIL) in 2023, the fundamental position on the issue of state immunity has been adjusted from absolute immunity to restrictive immunity. The provisions on jurisdictional immunity and immunity from execution of the FSIL are more closely aligned with the UN Convention on Jurisdictional Immunities of States and Their Property in 2004, 80 although China had not yet approved the Convention. The FSIL now helps to clarify China's position regarding the initiation of a restitution lawsuit as a state within another legal jurisdiction, as well as the Chinese court to hear cases about claims of cultural property when a foreign state is a party, in terms of the establishment of jurisdiction, court proceedings, and the execution of the subject. 81
International Civil Procedure Law
State practice in respect of the jurisdiction of Chinese courts in transnational claims of cultural property underscores the jurisdictional competence of the court of the state where the disputed cultural property is located at the time of litigation. 82 Courts with jurisdictional competence may not have the most significant connection to the disputes, 83 nor may they provide the best protection for the interests of source states or the rights of the people whom the cultural heritage were taken from. In most cases, the states in which the cultural property is located at the time of litigation are destination states with well-established art markets. 84 The success of restitution claims is uncertain since the cultural significance of the property in question may remain unclear. In this context, the revision of the Civil Procedure Law of the PRC (CPL) in 2023 has the potential to offer a solution, particularly in supporting courts located in source states to assert jurisdiction, by incorporating more flexible connecting factors.
According to Article 276 of the new CPL, in addition to the traditional connecting factors such as ‘the place where the subject matter of the litigation is located’ or ‘the place where the property is available for seizure’ which would normally establish a link to the destination state, the Chinese court may exercise jurisdiction if there is other appropriate connections to the PRC. In instances where lost cultural property is not situated within the territory of China at the time of litigation, Chinese courts may also assert jurisdiction based on alternative connecting factors by referring to this fallback clause. The connecting factors are of a wide range and could encompass original cultural, historical or scientific links between the property and China. This development favours the exercise of jurisdiction by courts located in source states, thereby providing an alternative option for achieving justice for individuals or communities seeking to safeguard their cultural heritage.
Nevertheless, the legislative framework governing the conflict of laws in China is yet to undergo the necessary adjustments to address the legal implications of disputes over ownership and transfer of cultural property. Judicial bodies have introduced innovative interpretations when applying the traditional principle of the lex rei sitae, as detailed below.
Law Enforcement
Efforts of law enforcement agencies with a view to achieving the return or restitution of cultural property removed illegally or illicitly to China have been more systematic and effective in fighting against the illicit trafficking of cultural property. 85 The Office for the Repatriation of Lost Cultural Relics was established under the auspices of the NCHA, who is charged with the primary responsibility to undertake the investigation, recovery and reception of Chinese lost cultural property, as well as the return of foreign illegally imported cultural property. By coordinating with other domestic agencies and cooperating with other states and international organizations, the Office has achieved a series of repatriation of cultural properties, making it a more professional and effective project not only in safeguarding the cultural identity of the state, but also exemplifying a commitment to international cooperation and the restitution of cultural property.
Judicial Practice
The Chinese judiciary has been seeking new narratives on the law application in resolving transnational claims for cultural property in cases involving the restitution of cultural property. They have resorted to innovative interpretations of the choice of law rules. The first case of the Chinese court seizing jurisdiction over the restitution dispute on cultural property helps to explain such a change, i.e., the case of the Zhanggongzushi Mummified Buddha Statue (hereinafter referred to as ‘the Buddha Statue’), a statue of a deity from a Chinese village, which contains his human remains.
In 1995, the Buddha Statue was stolen and smuggled from Mainland China to Hong Kong, where it was purchased by a Dutch collector and brought to the Netherlands, and transferred to Oscar van Overeem (the defendant, a Dutch citizen and domiciliary with businesses in Amsterdam) in 1996. In March 2015, after 20 years, the statue was loaned and subsequently exhibited at the Hungarian Natural History Museum. 86 After unsuccessful negotiations with the possessor, two village committees (the plaintiffs) initiated legal proceedings in both Chinese and Dutch courts, demanding the return of the statue.
In 2018, the Dutch court declined to hear the claim on the grounds that the villagers’ committees did not have standing to sue under Dutch law, without discussing the ownership issue of the statue. 87 In 2020, the Chinese court of the first instance pronounced its decision confirming that the Buddha Statue belonged to the Chinese villagers and ordering the defendant to return the statue to its original owner. 88 Following the defendant's appeal, the court of final instance upheld the decision of the preceding court in 2022, confirming that the defendant should return the statue back to the Chinese villagers. 89
The legal reasoning in the case encompasses nearly all the Conflict of Laws issues in the transnational claims for cultural property, thus creating space for the comprehensive reference to the Conflict of Laws toolbox in filling the gaps between mechanical choice of law rules and the purpose of protection of cultural heritage. 90 As was discussed above, in most cases concerning the transfer of rights of property, the lex rei sitae is the prevailing choice of law rule ‘long established beyond challenge’, and is certainly now considered to be so in practice. 91 However, this puts the original owner at a disadvantage when claiming for their stolen property, encourages the ‘black market’ as well as undermines the international effort in combating the illicit trafficking of cultural property. Therefore, in recent years, the conflicts practice has been seeking to address this issue by employing innovative interpretations of the lex rei sitae.
In accordance with Article 37 of the Law on the Law Applicable to Foreign-related Civil Relations (Private International Law Act of the PRC), the parties are permitted to choose the governing law applicable to the rights to movables. In the absence of such a choice, the lex rei sitae at the time the legal act occurred shall apply. The duty of the Chinese court in identifying the applicable law in the Buddha Statue case is to determine the place where the legal act occurred, including the location of the Buddha Statue at the time of theft in Mainland China, the first transaction in Hong Kong and the second transaction in the Netherlands. The court held that the act of stealing the Buddha Statue constituted the legal act that gave rise to the claim of the return, rather than the moments when the Buddha Statue was sold and transferred between different possessors. Furthermore, from the perspective of the international protection of cultural property, the court held that when interpreting conflict rules, an interpretation consistent with the purposes and objectives of international treaties should be made, in order to facilitate the return of illegally removed cultural property to its states of origin. 92 In this context, when searching for the proper law, the Chinese court placed significant emphasis on the fact that the original owner had been dispossessed and that historical injustice should be addressed. 93 Through the choice-of-law process, the universal consensus on the fight against illicit trafficking of cultural property as an emergent international public order in this domain would be achieved and strengthened.
It is evident that legal issues concerning the return and restitution of cultural property have progressively evolved into a specialized domain within the broader field of cultural heritage protection in China. Domestic legislation, law enforcement and judicial practice have been employed to prevent and combat the illicit trafficking of cultural property, with a view to promoting the return of illegally removed cultural property to its state of origin and creating space for international cooperation. This approach responds to global trends and contributes to the formation of a new international order.
Unresolved issues remain. In the case of the Buddha Statue, the Chinese courts focused on resolving spatial conflicts of law while neglecting temporal conflicts. 94 Correlating the determination of the loss of cultural property, a pivotal legal fact for the determination of applicable law, to legislation that had not yet entered into force at the time of the loss, merits re-examination. 95
Engagement in International Law Development
China has recently been engaged in international cooperation to promote the return and restitution of stolen and illegally exported cultural property to its state of origin. It has also participated in the international standard building, the reform of the international legal order, and the provision of public goods. These dimensions are given closer consideration in this part.
Bilateral Cooperation
Effective bilateral cooperation has been achieved at both governmental and institutional levels. With regard to governmental cooperation, as of November 2024, China had established intergovernmental cooperation frameworks with 27 source and market states such as Peru, Italy, Greece, Turkey, Switzerland, the United States and Australia, with the aim of preventing the theft, excavation and illegal trafficking of cultural property. 96 China and the United States first signed the memorandum of understanding on 14 January 2009, which was subsequently renewed three times in 2014, 2019 and 2024, respectively. Until January 2024, 15 batches of 504 pieces/sets of cultural relics and artefacts illegally import into the United States have been successfully returned to China, 97 serving as a testament to the commitment of both states to the preservation of cultural heritage, despite the competitive and tense dynamics present in other areas of international relations. Under the auspices of the agreements signed between China and Italy in 2006 and 2019, on preventing the theft and illegal export of cultural properties and facilitating their return, the two nations have engaged in numerous rounds of collaborative law enforcement initiatives, thereby optimizing collaborative efforts. Notably, Italy returned 796 sets of cultural properties to China in 2019, constituting the largest return of Chinese cultural properties in recent years. 98
At the institutional level, China has established cooperative mechanisms with museums abroad, promoting provenance research and collaboration on research. In 2021, a collaborative initiative was brought by seven German museums, with the objective of conducting a joint research project on the ‘Boxer War’ objects in their collections, researching their provenance and acquisition history. The project is in cooperation with the Palace Museum of China and is expected to publish a methodological guide on the research collections in the context of the Boxer War. 99
The aforementioned agreements and institutional frameworks constitute the intergovernmental and inter-institutional practices through which China conducts bilateral cooperation, highlighting a partnership forged through cultural ties. In the future, the circle of bilateral partners collaborating to combat illicit trafficking in cultural property is expected to expand. This includes addressing China's relationships with the majority of other destination states and resolving the non-retroactivity of such agreements as well as their applicability limited to signatory states. With regard to the provenance research, existing efforts are in their infancy and limited in scope when compared to the large volume of Chinese cultural property in overseas collections; urgent improvement is required.
Multilateral Mechanism
China is a state party to the 1970 UNESCO Convention and the 1995 UNIDROIT Convention. A series of cultural objects has been returned to China through the mechanism of international conventions. For example, a set of the Eastern Zhou Dynasty's (770BC-256BC) eight bronzes was repatriated from Japan in 2019 by the international law enforcement cooperation under the 1970 UNESCO Convention. 100 At present, there is a paucity of precedent for China to repatriate cultural relics under the 1995 UNIDROIT Convention, due to the fact that the majority of market states are not parties to the Convention, which results in the limited possibility for its application, for it is only effective between state parties.
China's international engagement with questions of cultural property restitution and protection typically reveals a significant connection to China's Global Civilization Initiative (GCI). The GCI calls for a mutual respect for diversity of civilizations, the common values of humanity, the importance of inheritance and innovation of civilizations, and robust international people-to-people exchanges and cooperation. 101 As the link and quintessential symbol connecting the historical legacies of human civilizations, cultural property plays a vital role in fostering mutual exchange and interaction on the foundation of equality. The integration of the GCI within the standards set for cultural property restitution is expected to help advance transnational rule of law in a manner that better aligns with the needs of cultural heritage preservation and the sustainable development of humanity.
International Code of Ethics
In addition to the development of domestic and international law, as the boundary between nationalism and internationalism has been blurred by views of mutual understanding and cooperation, 102 the new global order for the restitution of cultural property is echoed by soft laws, including resolutions of international organizations, codes of ethics and guidelines. As one of the states of origin that have been making progress in the return of cultural property, China has also been participating in the provision of international public goods. This has been achieved by means of the proposal of a new international code of ethics, with a view to achieving a balance between different interests.
In June 2024, the Qingdao Recommendations for the Protection and Return of Cultural Objects Removed from Colonial Contexts or Acquired by Other Unjustifiable or Unethical Means (Qingdao Recommendations) was launched during the International Conference on the Protection and Return of Cultural Objects Removed from Colonial Contexts, a supporting event of the 2nd Council Meeting of the Alliance for Cultural Heritage in Asia (ACHA). 103 After acknowledging the inadequacy of the existing rules of international law and the obstacles of domestic law, the Qingdao Recommendations, underscore the imperative to recognize historical injustices and emphasize that dialogue and cooperation, founded on the principles of equality and reciprocity, are indispensable for the protection and return of cultural objects that have been removed from colonial contexts. The Qingdao Recommendations then provide a series of suggestions for the cooperation between states of origin and states of possessors, including governmental and non-governmental organs.
Notwithstanding the fact that the Qingdao Recommendations is not legally binding, it represents voices advocating for the strengthening of international dialogue and the pursuit of a resolution to the protection of cultural heritage by negotiation and cooperation. The return of the Zidanku Silk Manuscripts from the Smithsonian's National Museum of Asian Art to China in May 2025 was regarded as an exemplar of the application of the core spirit of dialogue and cooperation outlined in the Qingdao Recommendations. 104
Concluding Remarks
When turning back to the emergence of a new international paradigm in transnational claims for the return and restitution of cultural property, it is demonstrated that China's recent practice at both national and international levels has been chasing a new paradigm. As evidenced by the reform of the domestic legal system and the participation in the international legal reform, China has demonstrated a commitment to building ‘a global community with a shared future’ and putting forward the GCI, which was echoed in the Qingdao Recommendations. 105 These initiatives have contributed to a paradigm shift in the traditional approach to transnational cultural property disputes, restricted to property rights, to a broader consideration of the cultural, historical and identity value of cultural property to its people of origin. Concurrently, a series of more ethical solutions have been proposed.
At the domestic legal level, international cooperation on the restitution of cultural property has been institutionalized through legislation, reflecting a respect for global legal pluralism. A dialogue based on equality and mutual benefit is a constructive way of resolving disputes over the return of cultural property. Overcoming legal obstacles to restitution through legislative and judicial techniques is evident in the form of amendments to statutes of limitations and innovative interpretations of conflict rules. These efforts demonstrate the proactive approach of states of origin to sweeping recovery barriers and fostering shared values. The growing scope of cooperation and the adoption of soft law rules further demonstrate China's dedication to promoting global governance through its cultural property restitution practices.
However, there is still a considerable distance to be covered before the new legal system for the return and restitution of cultural property can be realized. As the country is assuming a more complex status as both source state and market state, the legal framework and licensing system for preventing the import of illegal cultural property into China remains incomplete, and a comprehensive conflict of laws system for the claims that the Chinese courts are increasingly facing requires clarification. In this context, the implementation of the revised Cultural Relics Law is anticipated to encourage China to establish a more comprehensive system of import control and procedural arrangement in response to the increasing demand for restitution. Conversely, the establishment of global solidarity would not be accomplished by the states and communities of origin acting on their own. A more functional balance of interests is required between source states and market states seeking greater negotiation and constructive rule.
Although the current paradigm in the field of restitution of cultural property has not yet undergone a complete revolution, there is potential to develop and enhance practices that contribute to the renewal and improvement of the established paradigm. To achieve this objective, it is necessary to elicit a greater and more impactful response to the call to contribute to contemporary changes of historical significance in the world.
Footnotes
Funding
The author disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This work was supported by the National Social Science Fund of China (grant number 24VWB012).
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.