-Commentary-

BEIJING — Reports about rich Chinese men snapping up French chateaux for big bucks have been prolific lately. Many Chinese are astonished that these French cultural relics are available to private buyers at all, much less foreign ones. But I believe this represents not so much how open France is but rather how closed the cultural relics market in China is.

Last September the famous auction house Christie’s held its first Chinese auction in Shanghai and was allowed to deal only with general artifacts, not with cultural relics. Rumors that the new Shanghai Foreign Trade Zone would end restrictions on foreign capital investment in cultural relics proved too good to be true.

In fact, China has a strict licensing and reporting system for cultural relics going abroad. In 2001 and 2013, respectively, China’s State Administration of Cultural Heritage developed regulations that prohibit the work of famous painters and calligraphers who died after 1949 from going abroad. More surprisingly, the regulations also stipulate a certain “restriction of purchase of cultural relics.” Artifacts prohibited from going abroad are banned from being transferred, leased or pledged to foreigners.

As a matter of fact, China had much looser control over the export of cultural relics before 2007. Some artifacts created after 1795 were allowed to leave the country after export accreditation bodies reviewed their significance and representation worldwide. But in the 1970s and 1980s, China had an annual outflow of more than a million cultural relics, so to preserve national cultural heritage China’s State Administration of Cultural Heritage tightened prohibition, from 1795 to 1911. In my view, such a consideration doesn’t make much sense.

Who’s to say cultural relics are better protected at home and are somehow more likely to be damaged abroad? I’m not trying to defend predatory colonialism. But just imagine, were the Dunhuang manuscripts, treasured historical documents, still in the hands of abbot Wang Yuanlu, who discovered them and sold many of them, how many would still be left for the Dunhuang research scholars today?

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The 868 "Diamond Sutra" found in Dunhuang grottoes — Photo: British Library

Preserving a significant national cultural heritage is to some degree a reasonable goal. Many of them have important meaning and value to their country of origin. But when prohibition is solely based on the age of the artifacts and indiscriminately includes everything before 1911 — the year the modern Republic of China was born — that is overly narrow and overbearing.

Good for cultural exchange

It is appropriate to allow some ordinary cultural relics that don’t jeopardize people’s interests to leave the country for the purpose of cultural exchange. After all, this may well be an effective way to promote and export Chinese culture.

Just imagine if Picasso’s work were only allowed to be sold to the Spanish and Monet’s work only to the French. In most civilized countries such as Britain and France, the purpose of setting some restrictions is in principle to keep their significant national heritage or national treasure at home. They haven’t instituted outright bans on them flowing abroad.

In Britain, if an artifact is closely related to Britain’s history, is of very high aesthetic value, or is particularly significant in an academic research field, it is considered a significant national relic. In that case, the government will prevent it from going abroad for a certain period of time. Britain’s museums, public funds and even individuals are all entitled to purchase the relic at fair market price. If no one at home buys it within a certain period of time, then a foreign buyer is allowed to remove it from the country.

It’s the same in big art cultures such as France. Generally only artifacts of national treasure are restricted from leaving the country. After the government has been given a sufficient opportunity to purchase an artifact, nothing can stop it from leaving France.

As a matter of fact, a dozen years ago France also used to ban all national relics from leaving home. But what distinguished it from China was that owners who suffered financial loss because of the export prohibition were compensated by the French government.

I’m particularly impressed with a 1990s case in which an owner of Van Gogh’s painting “Garden in Auvers” wanted to sell it to a foreign buyer and was prohibited from doing so by the French government on the grounds that the painting is a national treasure. It was then sold in Paris for ＄9.5 million, less than one-sixth the international market price. So the owner took the French government to court. The government was ordered to pay the original owner ＄85 million, which the Supreme Court subsequently decreased to $29 million. Eventually, the French government realized that its policy wasn’t cost-effective, so it modified the regulation and bought the painting directly.

When it comes to national heirlooms, it should ultimately be a matter of balancing public power and the ownership rights of private citizens. Wielding public power should be a last resort. The scope and degree of interference ought to be restrained and within the principles of due process. Meanwhile, financial sacrifices on the part of private citizens should be given a reasonable remedy. Right now, the Chinese government has an overwhelming advantage over private citizens in this area. And it’s clear the system needs adjustment.

*Tao Jingzhou is Asian managing partner of the U.S. law firm Dechert LLP.