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[Lee Jae-min] Law on the return of artifacts

One of the current issues that arouses a heated emotional response from the people involved is the repatriation of cultural properties. The issue attracted global attention when the Metropolitan Museum of Art in New York decided to return to Turkey, after a lengthy legal battle, the so-called Lydian Hoard, which comprises 363 jewels and artifacts from the seventh century B.C. Presently, there are many pending disputes between the originating states and the museums and states that own artifacts. Originating countries make such strenuous efforts because cultural artifacts are considered to represent the formation of national or ethnic identity. 

If cultural artifacts represent national identity, each and every item is important and perhaps needs to be returned. In fact, however, there are two distinct groups of cultural properties located outside originating states: those forcefully or illegally removed from the place of origin, sometimes by colonial powers or private looters, and those removed through legitimate transactions. Regarding the latter category, the only way to bring the cultural property back home is by repurchase, lease, rent or donation by the owner. Obviously, all of these options are decisions to be made by the owner.

The biggest problem is the first category of illegal removal. This usually involves forceful removal by colonial powers or illegal excavation by looters, followed by sale in the international black market. This category has been the subject of international discussions (the Lydian Hoard also falls under this category) and led to the adoption of relevant international conventions. They are the 1970 UNESCO Convention and 1995 UNIDROIT Convention.

These international conventions, however, have their own inherent limitations. As with any other convention, they are only applicable prospectively only activities or transactions which took place after 1970 or 1995 respectively are covered. As Korea’s own experience shows, most forceful transfers and illegal smuggling predates those dates. Also, as with any other convention, they are binding only on those countries that have acceded to them. So, this means that the remedy for the first category of cultural artifacts is not so effective and that consequently the solution or repatriation also depends on voluntary cooperation from the owner or owning country.

So, from a practical perspective, there is almost no legal way of prying open the treasure box of cultural artifacts in countless countries, regardless of the circumstances that brought the artifacts in question there. Maybe this could explain why it is so difficult and time consuming to bring lost Korean cultural artifacts back to Korea.

Given this reality, a more effective approach for the country trying to retrieve its cultural artifacts would be to convince the owning countries or entities (such as museums) of why the artifacts constitute the underpinnings of the national identity and why, more importantly, it would benefit them to help return the artifacts back to the original owner. The first explanation would be relatively easy but the second would not.

The originating country would have to develop a persuasive logic. Maybe it could explain that the returning country would benefit long-term from the enhanced friendship fostered by the symbolic transfer. In fact, this is what happened to the countries and museums that have returned artifacts to originating countries recently.

The originating state could also discuss other mundane benefits. Examples would include cultural exchange programs, joint exhibition projects, joint research projects, or joint rental and lease programs between the museums or academic institutions of the two countries. As foreign museums have their own interests as institutes, it seems important to have them realize the actual benefits of returning artifacts.

Cultural property repatriation has been one of the controversial issues in the global community, sometimes inviting a great deal of national attention and emotion. This is also an area where one can observe a significant gap in opinion between the owning country and the originating country. As the legal norms are not sufficiently detailed enough in this area to adequately address the embarrassment of peoples whose national treasures were rooted out and are being displayed in foreign countries, a lot depends on voluntary cooperation from the owning countries and entities. The key then is how to introduce an international scheme to facilitate such cooperation. This seems to be the next critical project for the UNESCO.

By Lee Jae-min

Lee Jae-min is a professor of law at the School of Law, Hanyang University, in Seoul. Formerly he practiced law as an associate attorney with Willkie Farr & Gallagher LLP. Ed.
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