The Mainland’s Environment and the Protection of China’s Cultural Heritage:

A Chinese Cultural Heritage Lawyer’s Perspective

                     

      (This paper was published on ART ANTIQUITY AND LAW, Vol. 5, Issue 1, March 2000. We thank the Institute of Art and Law for its generous permission to recreat it on the web site of Cultural Heritage Watch. We also thank Dr Ruth Redmond-Cooper, the executive editor of ART ANTIQUITY AND LAW, for her hard work on the paper.)

 

The author of this paper believes that China’s cultural heritage forms part of a world-wide heritage and, as such,  is as important as the heritage of other countries. Understanding the climate surrounding the protection of China’s cultural heritage is the foundation for successful international cooperation.  The issue of illegal excavations demonstrates this situation in detail.

The view of the cultural heritage lawyer is different from that of the archaeologist.  Although China is a member of the relevant international conventions, including UNESCO and UNIDROIT, its legislation falls far short of the international standard.  The relevant professionals and agencies do a lot but there are significant weaknesses.  The attitude of local people is the most important factor when considering the preservation of China’s cultural heritage in the future, and to this end the public needs to be educated.  The author thinks that the establishment of independent non-government organisations in China is crucial to ensure success in the future.

A Case Concerning Illegal Excavation

In the summer of 1998, a flood caused serious damage to land in China.  Assets and buildings of cultural significance were also affected and the event was reported by The Asia Art Newspaper.  This article discusses a case which arose as a result of the flood.

Qixing Town in Xiangxiang City in the Province of Hunan, is a beautiful and wealthy village in Southern China.  It has a very large reservoir which in June and July of 1998 began to release floodwater.  During this time local farmers found a quantity of pottery and porcelain which appeared on the ‘new land’, which had been created by the flooding of the reservoir.  They believed that a large archaeological site had been unearthed.

Collectors and antiquity dealers learned of the discovery almost immediately and commissioned farmers to excavate the site.  Other farmers in the vicinity, knowing that these antiquities would make them rich, also began to excavate. By the end of September, several hundred people were excavating daily in the area.

During this three-month period of illegal excavation, attempts were made by some people to stop the looting of  archaeological material.  According to the law which protects China’s cultural heritage, all cultural property which has survived underground is owned by the State, and various levels of government within the administration districts should place these items under their protection.  From the outset,  the authorities at Qixing Town level and Xiangxiang City level were informed that this illegal excavation was taking place.  At the end of August, a lawyer in Beijing, specialising in the area of cultural heritage, telephoned and faxed the local government offices several times to urge them to perform their legal duty and to stop the illegal excavation.  Each time the authorities’ response to reporters and the lawyer was, “We know all about it. We are discussing it”. 

By the beginning of September, the only thing left for the cultural heritage lawyer to do about this serious situation was to invite the reporter from CCTV (China’s most influential TV station) to accompany him to the archaeological site.  At the site, they shot scenes of the devastated area, and interviewed the farmer who was excavating the site.  The farmer told them that he had been very happy to discover the antiquities, as he could make money from the discovery.  The farmer did not think the excavation was illegal, because the authorities did not put a halt to the excavation.  Moreover, he believed that someone from the local authority was also excavating at the site.

At the office of the Qixing Town government, the reporter was told by an official that he had not received any notification to stop the excavation so he could do nothing, and that government officials were very busy with other matters following the flood.  At the cultural heritage department of the Xiangxiang City government, the reporter was told that the site was not an archaeological site, the objects were not valuable antiquities, and they could do nothing to stop so many farmers excavating.

In the middle of September, the director of the cultural heritage department of Xiangxiang City government received a video tape from the lawyer in Beijing, and was told that it would be shown on CCTV if the archaeological site was still not protected within the month.

At the end of September 1998, two representatives from the cultural heritage department of Xiangxiang City government and the Qixing Town government, went together to the archaeological site.  They instructed the excavators to stop this illegal action and made a speech at the site about the laws protecting China’s cultural heritage.  On 4th October 1998, the director of the cultural heritage department of Xiangxiang City government reported the case to the cultural heritage department of the Hunan Provincial government.  The following day, the director also reported the case to the director general of Xiangxiang City government.

On 6th October, someone from the Cultural Heritage Department of the Hunan Provincial government went to the site together with the archaeologists.  They believed that this area contained the kiln used to produce the porcelain of the Song Dynasty (A.D. 960-A.D. 1279).  They had a meeting at the site with officers from the City and the Town governments.  The result of the meeting was a four-point decision:

1.     The Qixing Town government must immediately halt the excavation.

2.     The laws on the protection of cultural heritage sites must be published and circulated for all the farmers in this area to see.

3.     The chief culprits involved in the illegal excavation should be put under arrest by the local police force.

4.     Owing to its cultural significance, the archaeological site should be proclaimed as “a major site to be protected at county (city) level” by the Xiangxiang City government.

The result of this meeting was to improve the situation, but none of the illegal excavators was arrested, and indeed some continued their activities on a daily basis.

By November, the dry season was on its way.  The ‘new land’ of the archaeological site was growing in size, and many more antiquities were appearing on the land.  The sight of these archaeological riches was too much for the local farmers, and the illegal excavation and trafficking in antiquities began again.  At the end of 1998, about 3,000 local farmers were illegally excavating the site which now covered an area of 100,000 square metres.

Faced with this situation, the cultural heritage lawyer and his friends could do nothing but try to bring pressure on the authorities.  They faxed the report on the case to all the authorities and the news departments. On 20th January 1999, they received good news.  A group of archaeologists from the government of Hunan Province had arrived at the site, and the government planned to take action regarding the site.

On 30th January, the director of the Cultural Heritage Department and the director of the police department of the Hunan Provincial government came to the site together with representatives from all the related authorities of the province and immediately held a meeting.  The meeting produced a four-point decision:

1.     The police force would stop the looting at once.

2.     The cultural heritage department and the local museum would publish and circulate the law on the protection of cultural heritage sites to the local people.

3.     The police force of Xiangxiang City would place the main culprits of the excavation under arrest at once.

4.     The archaeologists would begin extensive work on the site at once.

         On the morning of 4th February, the police force began their work.  About one hundred policemen stopped the looting at the site. In total, fourteen illegal excavators were arrested and 2,925 illicit archaeological objects were recovered from their houses.  There still remained more than 2,000 illegal items which the excavators had not returned.

There are several points I would like to stress about this case.

1.     The site is now quite calm and the archaeologists are still busy working on it.  They said that the area of the site is about 1 or 2 million square metres and it is possibly the largest kiln site in China.  The Chinese history of the kiln will need to be rewritten.

2.     CCTV broadcast the programme about this case in April, including the information collected by the lawyer and the reporter who became involved the previous September.

3.     The fourteen illegal excavators are still under arrest.  As is normal under these circumstances, some of them will be sentenced to five or eight years imprisonment, and others will be fined and then released from custody.

4.     None of the many antiquity dealers and the ‘collectors’ who came to the site and purchased the illegal archaeological articles has been arrested because it was not possible to prove what they had bought.

5.       No one from the authorities has been arrested.  After the CCTV programme was aired, a member of the local authority told the news reporter they will work harder in future to protect the cultural heritage of China.

China’s Cultural Heritage

The case described is just one example related to the preservation of China’s cultural heritage.  Such problems could just as easily have arisen when it comes to the construction of roads, the transformation of cities, museums, and other all areas which can conflict with the preservation of China’s cultural heritage.  The cultural heritage of China must be protected by Chinese law.

Now, I would like to consider to what extent that cultural heritage is protected under the law. Article 2 of the ‘Law of the People’s Republic of China on the Preservation of Cultural Relics’, (effective as of 19th November 1982) provides as follows:

1.          The State shall place under its protection, within the boundaries of the People’s Republic of China, the following cultural relics of historical, artistic or scientific value:

(1) sites of ancient culture, ancient tombs, ancient architectural structures, cave temples and stone carvings that are of historical, artistic or scientific value;

(2) buildings, memorial sites and memorial objects related to major historical events, revolutionary movements or famous people that are highly memorable or are of great significance for education or for the preservation of historical data;

(3) valuable works of art and handicraft articles dating from various historical periods;

(4) important revolutionary documents as well as manuscripts and ancient or old books and materials, etc., that are of historical, artistic or scientific value; and

(5) typical material objects reflecting the social system, social production or the life of various nationalities in different historical periods.

2.          The criteria and measures for the verification of cultural relics shall be formulated by the State department of cultural administration, which shall report them to the State Council for approval.

3.          Fossils of paleovertebrates and paleoanthropoids of scientific value shall be protected by the State in the same way as cultural relics.

 

Ancient China was one of the most famous civilisations in the world.  Although much of the cultural heritage has been lost, and much more is in danger, we can still say that the heritage is rich, and some of that heritage is still being discovered.  At present there are more than 400,000 cultural structures protected or about to be  protected in the future by the law. Almost all of them are owned by the State.  Among them, there are 750 sites to be protected at national level, 6,000 sites to be protected at provincial level and about 55,000 sites at county (city) level.  And there are fifteen sites (from the 750 sites at national level) to be entered onto the ‘world’s cultural heritage list’. About 60,000 of the cultural structures actually enjoy legal protection because there are different levels of protection. 

The others are only ‘registered’ by the departments of the local governments at county level for their protection in the future in relation to planning permission.  The ‘register’ only means that the heritage authority knows their name and  location, and as usual, there are no pictures, no models and no reports. They are treated as ordinary proterty which could not get special protection under the law. I understand that more than 300,000 sites which do not enjoy legal protection form the foundation of traditional Chinese culture.

And what of newly discovered property?  Normally, some or most of these discoveries will be reported to the local museum or the cultural heritage department of local government.  According to their historical, artistic or scientific value, the property will be declared to be one which will be placed under a certain level of legal protection or only be ‘registered’ by the government.

Local authorities do not always greet these discoveries with enthusiasm, because they have to devote financial resources for their protection and it is always possible that the cultural structure will bring a halt to a project under construction.  For this reason the property may be damaged, stolen, robbed or dismantled at once by the local people (as in the case above), or by the local government.

Practical Impediments to the Protection of Cultural Heritage

According to cultural heritage lawyers, the following constitute some of the factors relating to structures of cultural significance.

Failure of the Legal System

Most of China’s cultural heritage is still not under the protection of the legal system. We know that more than 400,000 sites of cultural structures in China need to be protected. But this is only happening in the case of  60,000 sites.  If the main part of a heritage site is damaged (as happens every day), it can not get any support from the law or the authority to stop the destruction.  Both the law and the authority think the protection can not include a site such as this.  They will be protected in the future if they survive and if there is money available to do so.

Failure of the Administration

Although there are 60,000 sites which enjoy legal protection, it is impossible for some of them now to get support under the law when they need it because of their administrators. According to the law, the cultural heritage site will be:

(1)            provided with the necessary amount of protection

(2)            equipped with signs and notices

(3)            entered into the records

(4)     provided with full-time personnel or dealt with by a specially created department which will be responsible for the administration by the local government.

 

In reality the administration for the sites is weak.  For example, according to law, no additional construction project may be undertaken within the area of protection of a cultural heritage site.  Some departments are working hard to prevent construction projects, but at the same time, they have forgotten that they have not defined the area of protection for the sites.

Day to Day Use of Sites

Almost all of the sites are owned by the State, and most of them are used by almost all kinds of groups, including the government, primary schools and even factories.  Some of the drawbacks of the socialist or communist system are evidenced in the method of protection.  There are many authorities involved with these sites: the Chinese Communist Party, which promotes  socialist and communist ideas, authorities responsible for industry, education and tourism, and finally the cultural heritage authority.  And the regulations regarding the protection of these sites are only a part of the hundreds of documents the departments receive from the higher authorities.

Economic Factors

The preservation of sites of cultural significance may be viewed either as an obstacle to economic development or as a source of riches for many people, including local governments.  Some even think that these sites are not so vulnerable that they need this special kind of protection.  For some local governments, the sites are indeed an impediment to the rebuilding of the city, for establishing larger business centers, and for building roads.

For example, Dinghai Town, located at Zhejiang Province in East China, was a very famous old town exemplifying eastern Chinese traditional culture, and has many registered and protected heritage sites. From 1998, the local government began to rebuild the town as part of a development process for the new century.  At the time of writing (August 1999), the old town has disappeared and it is very difficult to find a heritage site in this area.  It is also terrible that these cultural sites have become a source of riches.  The commercial exploitation both of the land-based and underwater sites, the ‘rebuilding’ of heritage sites for tourism, and the building of large hotels inside the ancient cultural sites, are rapidly eroding the China’s cultural heritage.

Remoteness of Sites

Most of the sites are to be found outside cities and towns, sometimes even located in the desert.  The task of the heritage department’s in protecting and preserving them is a difficult one.  In some areas, one or two people have the responsibility of protecting more than ten square kilometres of heritage sites. In addition he has nothing to help him accomplish the task, no motorcycle and no telephone.  He may have a dog, but has scarcely enough food to feed the animal.  Once a month, someone from the local authority goes to check that the protection is working.  The law on protection is a luxury in this kind of area.  One person can do little to protect the sites when he has only himself to rely on.  Some of them are my friends.  I understand their problems.

Vulnerability to Nature

The predominant materials of the cultural structures and buildings are wood and brick.  Therefore nature inflicts serious damage.  Authorities have to contribute significant funding (although it is far from enough) towards their preservation every year.  For example, about 9 million US$ was spent on the maintenance and repair of the cultural property by the different levels of government in 1998.  Fire, pests, earthquakes, traffic vibration, and hazardous environmental pollution, are the enemies of preservation.  It is vital that the heritage department makes known the importance of environmental protection to the relevant bodies such as chemical fertiliser factories, cement factories, coal mines, traffic companies and restaurants.  Cultural heritage lawyers have also issued serious warnings to them over the years.

Failure to Register Artefacts

Isolated stone artefacts are an important part of the cultural structural heritage in China.  They are scattered among the mountains, in deserted, out-of-the-way places.  This kind of property was the most seriously damaged and looted between 1996 and 1998.  It is difficult to assign enough people to be responsible for their protection.  And it is also impossible for them to be collected in museums.  However, it is necessary for them to be registered on an individual basis, for example, they should be registered in the Getty’s ‘Object ID’.  It is a matter of deep regret for lawyers that the authorities believed it was too difficult for them to register so many properties in the ‘Object ID’ before 1996, and those which were stolen after 1998 could not be registered.

Inadequacies of Museums

According to the report of the cultural heritage authority, there is a total of about 11 million cultural effects owned by the State.  The great majority of these items in China are collected in the museums and  libraries.  According to the law, the protection of these effects is one of the most important tasks facing museums. I must point out that almost all of the museums and libraries were established by the government, in particular by the Cultural Heritage Department. 

By the end of 1998, there was a total of more than 1,300 museums established by the Cultural Heritage Department and a collection of 9 million items of cultural significance.  Six thousand exhibitions were held in 1998 for 88 million visitors.  I believe most of the museums are working hard for the protection and the exhibition of China’s cultural heritage.  But at the same time, I know that most of them are really in danger.  They do not have enough money to support them.  They have no safety equipment, no modern storerooms, the properties remain unregistered at the international level, pictures of most of the items do not exist, many museums do not have records of their collections, there are no rules governing the collection, and most worryingly of all, many museums do not know they are in danger.

Ten years ago, the most famous oil painting in China, cared for by the National Museum, was ‘carried’ out of the Museum, and several years later, was sent to an auction house.  Both the ‘State Bureau of Cultural Relics’ (now known as the ‘National Administration for Cultural Heritage’) and the Museum were unaware that the painting was the property of the Museum.  The ‘carrier’ got about 500,000 US$ from the auction house.  He said his actions were lawful because the authorities, including the government and the Museum, were aware of what he was doing.  In 1998, he was sued in the courts.  However, it remains a very difficult area for cultural heritage lawyers because the case illustrates the seriousness of the situation in relation to the administration of cultural heritage throughout the whole country.

The collection of relics is a cultural tradition for Chinese people. Before the creation of the ‘New China’, (established in 1949), most of the intellectual, official and wealthy people in Chinese society collected relics.  After the ‘Liberation’, in particular the ‘Cultural Revolution’ (1966-1976), worship of the cultural heritage began to wane.  However, collecting is still part of the Chinese culture and tradition.  No one knows how many relics and modern works of art have been collected by the people.  I have visited collectors from the largest cities to the smallest town and been surprised to find a rich collection of incunabula, old musical instruments and other items.  As a cultural heritage lawyer, I am of course pleased that these items are being preserved by the people, but at the same time I also feel alarmed because of the drawbacks associated with a  private collection.

First, the physical situation in which the collection is kept is often too hot and damp in the summer or too cold and dry in the winter.  It may be overcrowded and cramped and pests are a serious threat. 

Secondly, the cultural property has not been registered either by the authority or the collector themselves.  Few of the collectors have published details about their collection.  Although a few exhibitions from private collections have been held in recent years, I can not say that people have had a chance to enjoy or be moved by this part of their cultural heritage. 

Thirdly, I have found some illegal items in some collections.  Among them, there are illegal archaeological materials, designs of the ancient buildings and some items from museum collections established by the government.  Some famous collectors were happy to tell me about their relationship with illegal excavators and traffickers. 

Fourthly, some of the collections are on the move.  Some are exchanged between collectors, some given as gifts to both Chinese people and foreigners, some are sold (this is most common), some stolen, and some given to museums.  This movement is never registered by collectors or authorities. 

Fifthly, almost all of the collectors I met had no knowledge about cultural property law, except that a museum thief may be punished. 

And finally the law protecting the cultural property on the mainland, especially in private collections is not being put into operation  and besides the law itself needs to be amended.

The Legislation

China has no tradition of ‘legality’ i.e. the rule of law. From the end of the nineteenth century the legal system from the West had begun to influence the Chinese and it was transferred to China before 1949.  However, this was repealed at the beginning of the ‘New China’.  Because of the adoption of ‘Open Door Policy’ in 1978, China began to try to establish its own legal system.  Up to the present time, China has indeed succeeded in doing this and will continue this work.  Some areas of the law are quite advanced but the others are still in their initial stages. Unfortunately, the legal system on the protection of China’s cultural heritage falls in the latter category.

The old legal system were completely abolished on that morning 50 years ago because it was capitalist and feudalist. Before the ‘Open Door Policy’ in 1978, there were many rules and regulations on the preservation of relics by the ‘New China’.  These had come into being as a result of  the struggle between socialism, nationalism and the tradition of collecting relics.  They were simple and were not drawn up by someone versed in the science of law.  For example, it was the central government which issued the order to halt the export of important relics and old books in 1950 and the order about the preservation of historical and revolutionary property during the socialist construction of 1953.  In 1960, the culture minister and the foreign trade minister issued guidelines for exporting relics of a particular age.  All relics which pre-dated 1795, some from before 1911 and some from before 1949, would be prohibited from being exported abroad.

In 1961, the State Council issued regulations on the protection and the administration of cultural relics.  Because of the absolute authority of the Party and the government, and because of the simple social structure, the orders and the rules were executed strictly.  I must point out that during the ‘Cultural Revolution’ (1966-1976), one of the darkest periods in the history of  human civilisation, the Central Committee of the Chinese Communist Party also issued an order in 1967 on the preservation of relics and old books during the Revolution and, as a result, many museums received many collections.

The period from 1978 up until the present day is called ‘the spring of the legislation on the protection of cultural heritage’ or ‘the period of strengthening of the legislation’ by the authority of cultural heritage.  To a certain extent I applaud the authority because much work has been done at different levels of the ‘People’s Congress’ (parliament) and at government level because of the legislation.  For example, the Standing Committee of the National People’s Congress adopted the Law for the Protection of Cultural Relics in 1982 and revised the law in 1991.  The State Council approved the Rules for the Implementation of the Law of Protection in 1992 and in 1989 the State Council issued the regulations concerning the Administration of the Work for the Protection of Underwater Cultural Relics.  The State Council approved the Measures for the Administration of the Foreign Related Archaeological Activities in 1990.

There are more than 25 regulations derived from the laws of protection which have been adopted by local government authorities.  And, of course China is a member of the 1970 UNESCO Convention, the 1972 UNESCO Convention, the 1995 UNIDROIT Convention and other important international protection conventions.

Contemporary Challenges for the Protection of China’s Cultural Heritage

The period from 1978 (Reform and Opening Policy) up to now (and in the future), is very important for the protection of China’s cultural heritage. The merits for its preservation in the closed social system have been lost, but the merits of the open social system have not yet arrived.  The challenges which faced both social systems are still faced by China today but the legislation still reflects the old system. That is one of the reasons why the heritage has suffered so badly. Perhaps China’s  ‘own legal system’ relating to protection is flawed in the following ways.

Failure to Codify Cultural Heritage Legislation

Although it has been suggested that authorities codify the law for the protection of China’s cultural sites, nothing has been done to sort out and abolish older documents relating to the protection of the cultural heritage.  There are in existence a total of about 100 documents from 1949 up to now, relating to legal protection but most are now redundant and contradictory. This illustrates the fact that legal protection is still not viewed as an important factor in the protection of China’s cultural heritage.  Authorities appear not to need this law of protection.

Ambiguity over the Scope of Protection

The definition of the scope of this protection is not clear.  It causes the authorities a lot of work to stop the destruction and loss of cultural property.  The law of protection includes an article on the definition and the scope of the law, but it gives no guidance on the time limits and procedures, which the responsible authority should adopt.  According to the law of protection, ancient tombs should be owned and protected by the State, and any excavation of them, other than archaeological studies approved by the authority, should be prevented.  According to other documents however, succeeding generations have some rights to the tombs of their forefathers.  Because there is no guidance on museum collections within the law there are as many views as to what this constitutes as there are museum directors.  If collections are sold, the directors will say it is not a collection, but pieces of paper.  Some illegal trafficking has been stopped, but the trafficker can always say to the court: “No, it’s not cultural property, it’s only a family memento.”

Absence of a System of Registration

No system of registration has been established for either buildings or artefacts. It has been argued that a system of registration does exist in China simply because of the presence of the many cultural heritage sites which are protected and the existence of museum collections.   However, they are not the real registration at all. Before the adoption of Open Door Policy in 1978, everything, including all cultural property, was either owned or controlled by the State or central government.  State or government was absolute.  The registration of the number (not a description of the property itself) of items of cultural property was important only for demonstrating the great cultural and revolutionary tradition and the great positive outcome it had on the protection of China’s cultural heritage.  Although this kind of society has gone forever,  the content and process of the register has not been given a high enough priority by the authorities.

For example, in the case of a particular cultural heritage site which needed to be protected at a national level, and which included one major ancient building and four small ancient buildings, the authority published only the name of the major building.  This meant the site had been registered and should have been protected.  A construction company dismantled two of the four buildings to make way for a business centre.  The company said it was not acting illegally because the site included only the major ancient building.

In another case, an important museum collection was stolen.  The lawyer representing the alleged thief told the court that the object was not the part of a museum collection because there are no photographs of it and a description of the  item was not entered into the record book.  If the register is not established, the laws and the international conventions on the protection of cultural heritage will remain as no more than empty words.

Export Licensing

The system regarding export licences needs to be perfected, and there should be no exceptions to the rule.  Although ‘New China’ adopted the prohibition order very early, and has joined the two important related conventions, I still believe that the Chinese licensing system does not stop illegal trafficking.

Initially, in 1960, there was a ‘standard of reference’ on the three age bands (1949, 1911, 1795) in relation to exported objects, but the standard is unclear, has no effect on the law, and is unsuited to China’s way of life.  In fact, the standard is viewed as so much waste paper by the relevant authorities. 

Secondly, each classification department within local government sets its own standards regarding exportation, in particular the level of importance of a particular object.  The department needs to recoup the expense of a seal (one kind of licence) on the exported property. 

Thirdly, the ‘licence’ itself varies in form.  The licence for property which comes from shops selling relics, which were established by the State, is comprised of the seal and an invoice from the shop.  The licence for other cultural property is the seal and the permit from the classification department.  Sometimes it is also difficult for customs to identify a particular kind of licence.  I have discovered false documents several times. 

Fourthly, there is the exception to the export licensing system.  From 1979, the national administration on cultural heritage has had a special right to export property.  In this case a seal is not needed but a ‘special permit’ from the authority. 

Lastly, most of the licences, including the stamp and the permit must be kept by customs when the property is exported.  The authority believes that it will thereby prevent the licence from  being reused illegally.  However, this  makes it very difficult for anyone to identify whether the property has been legally or illegally exported.

Absence of Control of the Relics Market

There are no regulations relating to dealing in relics and the relevant private collections.  Up until 1992, this form of trade was the only way in which the ‘relics shops’ (only established by the State) could purchase important private collections for museums, and sell ‘ordinary relics’ to people.  Everything involved in the business and export of relics was managed directly by the Heritage Department of the provincial government or the central government. 

After the ‘Open Door Policy’, an attempt was made by the authorities to reform and open up the administration system which dealt with artefacts.  In 1992, the director general of the National Administration of Cultural Heritage said that, “We must stimulate the relics market. We are not concerned by illegal trafficking.  We will buy those items back in the future.”  Very quickly, many cultural property auction houses and other areas of the relics trade were established.  From that time until now the government has debated opening or closing the ‘relics market’.  No effective scheme has yet been established. 

This period has also become one of the most ominous in Chinese history regarding the fate of archaeological sites and the trafficking of items of cultural value.  Although the 1970 UNESCO Convention, the 1995 UNIDROIT Convention and the related training from UNESCO have begun, the relevant systems and regulations based on international standards are still far from being adopted in China. 

Stimulating the relics market goes hand-in-hand with allowing illegal excavating and trafficking.  Closing up these markets, together with the auction houses, and returning to the old system where the Heritage Department of the government managed all artefacts directly, are also impossible in today’s China.  It is difficult to understand what the authorities are thinking about the information on the relevant systems and regulations governing artefacts which could be obtained very easily from an international organisation such as UNESCO, even though some of the information have been translated into Chinese.

Failure to Enforce the Law

Most of China’s cultural heritage is owned by the State, administered by different levels of local government, and managed by each unit at grass-roots level.  The Cultural Heritage Department has the authority to protect cultural sites, the Finance Department provides financial support whilst the safety of the property is the responsibility of the Police Department.  Almost all government departments have interests in their cultural inheritance.  However, they have no duties and obligations to the legal protection of cultural heritage.  So many ancient tombs were illegally excavated, so many items were illegally exported and so many archaeological sites have disappeared under the bulldozer, and yet only a few criminals have been arrested.  This is the biggest defect of the law which protects China’s cultural heritage.

The Professionals and Agencies of Protection of China’s Cultural Heritage

The professionals and the agencies which protect China’s cultural heritage are also called ‘the guard of the cultural heritage and museums’ in China.  It includes all kinds of people as well as the agencies of the government’s heritage departments, the museums owned by the State, the protection groups, the institutes and relics shops established by the State. 

It is necessary to point out that some of the professionals have been exploited by some of the private museums, relevant auction houses, relics dealers and others.  Although many of them are heritage experts, they are not viewed by the authorities or other agencies as a part of ‘the guard for the cultural heritage and the museums’. In the system of administration, the professionals are ‘the cadres of the State’, the agencies are part of ‘the organs of the State’.

In 1998, there were a total of more than 60,000 people working as professionals and 3,500 agencies of protection.  22,000 of these  people work in 1,900 units for the protection and the management of ancient buildings or sites.  31,000 people work in the 1,300 museums established by the government and 3,000 people are in the 53 institutes.  The professionals and the agencies have done a great deal to preserve China’s cultural heritage, and most of them are working hard.  I must stress that the situation they face has steadily deteriorated. Some of these people have been wounded and even killed whilst protecting China’s cultural sites.  Their incomes are less than those of many other people.  After this honest appraisal, I should also stress the weak points of this ‘guard’.

Insufficiency of Personnel

60,000 people and the 3,500 agencies are not enough to ensure protection.  China is vast and owns many cultural sites.  The ratio of people to protect the range of cultural property is one per 20,000 people, only about one museum for one million people and one professional is responsible for looking after 20 sites, which include protected sites and registed sites. 

Almost every day there are properties lost or damaged because they are unprotected, and valuable information are lost because of the absence of the relevant professional on site.  A lot of  important work remains undone because of the lack of sufficient numbers of professionals,  such as the education of young people, the property register for the whole country, the database on the lost heritage information and the retraining for the professionals on some weak areas of protection.  When we talk about the related problems, we should understand that the volunteer system which adopted by most museums in the world regarding the protection of cultural property has not been established at all.  It means that all of the work on protection has to be done by the professionals themselves, and usally they have a lot of trivial matters to deal with beside the protection work.

Lack of Relevant Expertise

The expertise both of the professionals and the agencies is not sufficiently high to implement the principles of protection.  I believe this will be a key issue in the future.  Many professionals (more than 80 per cent) are not educated in university and have no particular skill for their job.  The majority of the highly educated professionals are graduated from history, Chinese literature, archaeology or ancient architecture departments.  These special skills are very important for the preserving China’s cultural heritage, but they are not enough.  Compared to the situation twenty years ago, there are many new problems which need to be resolved regarding this.

In the spring of 1999, some farmers brought a case regarding a cultural structure against the authority, and a museum was sued for breaching the rightful ownership of a portrait.  It was a sorry fact that both the authority and the museum even did not try to obtain legal services. I have had the opportunity to read the terrible defences written by some historians. I asked them why they had not engaged a lawyer for the case.  The directors answered my question:  “We do not know how to engage a lawyer, and we believe that it is not necessary.”  The two cases have not yet been concluded, but I, along with the judges, feel a little angry at the ignorance of the authorities and the museum in their attitude to the law.

From 1998, after selling off land and minerals, the local governments of some provinces planed to launch some of the most famous museums onto the stock market.  Needless to say the authorities protecting the cultural heritage wanted to stop such an action, but it was too difficult for them to argue against the local governments.  No one in the cultural heritage department understands basic financial terminology.  Computer and information technology have developed very quickly in China.  The illegal excavators and traffickers obtain information on-line very easily.  However, only a few people from the museums and other cultural institutions understand the importance of the World Wide Web. Besides that, some professional organisations such as the Cultural Heritage Law Institute, the Information Institute on Cultural Heritage, and others need to be established as quickly as possible.

Training Requirements

Amongst others, directors of government heritage departments, the museums and other related organisations, lack training.  This alone does not account for the situation as described above.  In reality, the professional and the heritage agencies are subordinate to the cultural authority and the communism propaganda organisation.  Many of the professionals, including the director of the museum and the archaeological institute, come from organisations like these every year.  Some even come from the army.  All of them know little about China’s heritage and its protection when they enter this area.  These professionals need all kinds of training on the relevant law, and, most importantly, the directors need to be trained to understand the international conventions.  If the director general of the authority does not understand the 1972 UNESCO Convention, if the director of the museum does not know the Code of Professional Ethics of ICOM, this will be more damaging to the protection of the cultural heritage than if the director of an archaeological institute does not know about new discoveries at home and abroad.

Scope of Cultural Protection

The professionals and the agencies should exercise more control and restraint.  What is the meaning of ‘protection of cultural heritage’?  It is the most complicated question and may have many different answers for young people and professors.  But I believe that it is tantamount to a  criminal offence if the answer from the authority on cultural heritage is nothing more than “don’t play with fire in the Palace Museum”. 

Devaluation of Cultural Protection

Because of the challenging demands of the law of  protection, the inadequacies and weaknesses of the ‘guard’ and the unclear division of the work with other government departments and authorities the question of ‘protection of cultural heritage’ is becoming less and less important in the eyes of the authority of cultural heritage.  Many problems have not been solved, much of the hidden danger has not been removed and many important areas under the protection are still isolated. It is vital to keep the pressure on the authorities.

Control of Professionals and Agencies

Controlling the professionals and the related agencies is also very important.  The new penal code of China contains an article about neglect of duty by the heritage professional. And there are two special codes of professional ethics.  One applies to all professionals in China and another is aimed at the professional of the National Administration on Cultural Heritage.  I think the general principles of the two codes of ethics are similar with that of ICOM and other international standards.  But to an extent I believe that this article of the penal code and the two codes of ethics are not worth the paper they are written on. 

Some archaeologists keep artefacts in their own houses and some of the most important ones have disappeared.  A few of the more highly placed professionals in the museums cooperate with relic dealers or illegal traffickers to acquire properties for themselves.  In recent years some professionals have also become famous private collectors.  A few of the related archaeological organisations neglect their duty during the large construction projects.  A few authorities destroy the cultural sites when they cooperate with the larger foreign companies.  To my knowledge no one has been arrested for this, or even given a warning to cease. 

I believe that these problems, concerning both the professionals and the agencies are not only harmful to the aim of protection but also have a damaging influence on the outlook of young people towards their cultural heritage.

The Role of the Guard of Cultural Sites and Museums

The ‘guard of cultural sites and museums’ needs to strengthen its relationship and increase its cooperation with others at home and abroad.  To some extent, the ‘guard’ is complacent and conservative.  Some people in this area may think that their job is superior, their specialty so complex, that they cannot be understood by others.  However, their lack of motivation is only one factor.  In the absence of strong relationships and cooperation with the authorities involved in the long-term planning of cities, with the financial sector, the police force, the protectors of the environment, religious organisations, the education department, customs and others in China, it is difficult to provide better protection for the cultural sites.

With regard to the relationship and cooperation with the relevant foreign and international organisations, the ‘guard’ also has many problems.  The ‘foreigner’ they deal with is often a bank or the establishment.  They are powerful within the relevant areas and can quote ‘sovereign rights’ as a reason for their non co-operation.  The lack of training on international cooperation, also causes problems.  The protection of cultural heritage is an international project.  It is impossible to provide greater protection of China’s heritage without strengthened international cooperation.

 

Local Public Attitudes and What we Most Urgently Need To Do

I think Chinese people are greatly interested in their relics and their history.  It is part of the tradition of Chinese culture, and that tradition is still being developed.  These attitudes are important when it comes to protecting China’s cultural heritage and the battle to save and preserve this heritage could be won with better relevant legislation, administration, training and education.

It is difficult to discuss local public attitudes in detail without a  public opinion poll.  I think it is important to point out some of the negative attitudes of people regarding the preservation of their cultural heritage.

1.            Many people think that cultural treasures are the most important aspect of the national cultural heritage.  The auction house is more famous than the museum, and the treasures of the auction house are more interesting than the property in the museum.  Of course this is not so and that property is just as important for the people and the State.  But it is dangerous to equate the value of cultural property only in financial terms.  “The higher the monetary value of a piece of property, the greater its cultural significance” seems to be the attitude of many ‘reformed and open’ people.

2.            Many people do not think that the protection of their cultural heritage is an important part of their  human rights.  The concept of ‘human right’ is currently becoming a well-known concept in China, but cultural rights do not seem to be accorded the same importance.  The enjoyment of the cultural heritage seems to be a luxury afforded by the few according to many people.  It is difficult to provide greater protection to China’s cultural heritage in the near future if ‘cultural rights’ are not embraced by the law and find a way into people’s hearts.

3.            Some people view the laws of protection as an obstruction to development.  There are many reasons why some people think this: the poverty of everyday life, the Party slogan ‘development is everything’, imperfect laws, the protection procedures, the corruption and incompetence of the authorities, and inadequate education and training, etc. 

It is a serious state of affairs when local authorities and other departments within central government are destroying cultural sites in the name of the new ‘openness’ and development, in particular in the reconstruction of cities.  There is even a view held by some people in government that the law on the protection of cultural heritage has been an obstruction to development and that these laws should be abolished at once for the benefit of the local people.

4.            Some people think that those ancient buildings which are not being enjoyed by tourists and those artefacts which are of a low value are not cultural heritage at all. This stems from the idea that the lower the market price of an item the lower its cultural value also.  The law does not permit the demolition of such sites but some people are busy ‘rebuilding’ the sites for tourists under the name of protection.  Many local governments permit this as they can save money by not protecting the site themselves and also profit financially from the tourism.

5.            Political principles still play too big a part in the work of protection in the view of some people.  There have been many changes to the political system in China over the last ten years.  The socialist revolutionary tradition is still the most significant aspect of China’s cultural inheritance, and the monuments of the socialist leaders remain the most important cultural properties.  Preserving political ideals is important for China.  The revolutionary monuments are easier to get support from the government than ordinary cultural sites, and some of the revolutionary monuments are indeed cultural sites of modern history.  But if the political ideal is higher than that of a wider culture or history, the protected cultural heritage will become the revolutionary heritage alone.

6.            According to many collectors, their private collections form part of their private wealth.  Because of the weakness of the legal and education systems, the collectors believe they have the right to profit by and dispose of their own collection.  Most of the private collections cannot be viewed as part of the national heritage because no one can enjoy, touch and study them, and the property is in fact outside  the law of protection.  “He has at least a one million US$’ collection!” is often said of private collectors.

7.            The cultural heritage and its protection are distant from the everyday lives of many people.  The sites are only the reference material for the scholar’s study of history, and the protection of them is the duty of the government alone.  Although some people have made money from the business under the name of protection of cultural heritage, and many people can enjoy museums and monuments, local people are actually still far removed from the area of China’s cultural heritage and its protection. 

The authorities and the museums say they need the local people to participate in protecting the cultural heritage.  However, those involved seem to enjoy many special privileges.  The result of the corruption of some authorities, museums, archaeologists and others, is that local people continue to feel far removed from their own cultural heritage and its protection.

In conclusion, the biggest problem facing the protection of China’s cultural heritage is that the relevant authorities always say the situation regarding its preservation has improved, and that the local people are poorly educated about their rights to a  cultural heritage.  The most urgent task facing us is the establishment of relavant independent non-governmental organisations.  Pressure needs to be brought upon the authorities and everyone should be educated about their cultural heritage.