SEOUL MEETINGS ON THER RETURN OF CULTURAL PROPERTY TO ITS

UNCLAS SECTION 01 OF 06 PARIS FR 000048

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TAGS: SCUL UNESCO KPAO KS FR JA
SUBJECT: SEOUL MEETINGS ON THER RETURN OF CULTURAL PROPERTY TO ITS
COUNTRY OF ORIGIN (NOVEMBRE 26-28, 2008)

REF: 07 Paris 002594


1. Begin Summary. From November 26-28, two international meetings
were held in Seoul, South Korea to address the issue of the return
of cultural property to its country of origin. On November 26,
independent Experts met under the auspices of the Korean Government
to review selected case studies of cultural property returns that
have occurred in recent years. The Experts also exchanged
observations on lessons learned from those returns and exchanged
ideas about further steps that can be taken to facilitate more such
returns. From November 27-28, UNESCO's Intergovernmental Committee
on the Return/Restitution of Cultural Property to its Country of
Origin (the "Committee") held its first Extraordinary Session and
its only meeting outside of UNESCO headquarters in Paris. Though
separate, both sets of meetings were held under the banner of, and
in tandem with, the celebration in 2008 of the 30th anniversary of
the Committee's existence. The U.S., as a Committee member, was
substantially successful in preventing the deliberations of the
Experts' meeting from dominating the Committee's agenda of work and
its deliberations. Also, importantly, at the closing session the
United States (with help from one or two other Committee members)
persuaded the Committee to only "take note of" and not to formally
"endorse" several proposed initiatives that had emerged from the
Experts' meeting. Korean governmental authorities, aided by
Korean experts present, exploited their status as host government to
repeatedly criticize France and Japan for having failed to return a
number of important Korean cultural heritage properties closely
linked to Korean national identity. The Committee's next ordinary
session is scheduled to take place in Paris in between 11-13 May,

2009. The Committee in principle agreed to consider at its next
meeting a U.S.-proposal to have the Committee begin holding ordinary
meetings annually rather than bi-annually, as is now the practice.
End Summary.


2. The United States, joined by other Committee members and also by
government representatives of UNESCO Member States not on the
Committee (such as Canada, France, Germany and the UK),participated
in the Experts' meeting in Observer status. (Mission Legal
Adviser, T. Michael Peay, represented the U.S.). At the opening
session of that meeting, the Assistant Director-General for Culture,
Francoise Riviere said that the Committee was meeting for the first
time in its 30-year history in extraordinary session. She
clarified for the record that the Experts' meeting was being held
"under the authority of the Government of Korea", not UNESCO, and
that the Committee's extraordinary meeting was being held under the
joint authority of UNESCO and the Government of Korea (GoK). She
clarified further that the conclusions of the Experts' meeting would
have no binding effect upon either UNESCO or its Member States. She
added that it had been decided in consultation with Korean
authorities (after much discussion) to call the Experts' meeting's
final outcome document "Conclusions" rather than a "Declaration."
This was done to avoid any suggestion that the Experts' document
would have normative connotations, she said. Finally, Riviere
applauded the holding of Experts meetings such as this and the one
held in Athens in March 2008 as forums that offer opportunities for
museums, art dealers, academies, and other private expert
institutions to discuss and find realistic solutions to requests for
the return of cultural property to its country of origin.


3. Salient Points from the Experts Meeting: Session One. Generally
speaking, the line-up of experts assembled (many of whom were
academics) was fairly impressive and their individual presentations
were similarly pithy, thoughtful and well-organized, even if at
times a bit too far-reaching. Nearly all presentations were done in
power-point format, had been pre-printed and were readily available
in loose-leaf binders distributed to all participants. Korean
Professor LEE, Keun-Gwan opened by referring to an International
Plea issued by former-UNESCO Director-General (D-G) M'Bow in 1978
("the 1978 Plea") which called for the return of cultural properties
to their countries of origin. Lee alluded to the Italian
Government's return of a fragment of the Parthenon marbles and also
to Italy's return of a Venus statue to Libya and to the importance
of the 2008 Treaty of Amity, Partnership and Cooperation between
those two countries, in this regard. Lee cited as another
favorable precedent the return of a cultural object from Japan to
South Korea, and then its ultimate rendition by South Korea to North
Korea as the country of origin. Professor Lee observed that, during
the course of its thirty-year existence, only a very small number of
cases of return had been resolved as a result of actions taken by
the Committee. However, he noted that the Committee had nonetheless
played a supportive role by giving heightened visibility to the
overall issue of return.


4. Reading from remarks prepared by former D-G M'Bow who could not
attend the meeting for health reasons, A/DG Riviere underlined
M'Bow's point that the reason he launched the 1978 Plea was not/not
"to empty the museums of Europe and America, but rather to allow
certain items to be returned that have special cultural
significance" to the requesting country concerned. Australian
Professor Patrick O'Keefe (a widely revered eminence grise with over
40 years experience in this field) enumerated a list of 10 specific
initiatives that he says the Committee should consider taking to
enhance the return of such cultural objects. Many of his
suggestions were seen as practical in nature, pertinent, and
possibly feasible.


5. Specifically, Professor O'Keefe suggested that the Committee:
(i) monitor more closely and try to reinvigorate the 1999 Code of
Ethics for Dealers to ensure that it is being used by dealers; (ii)
renew its past discussions and consideration of possibly drafting a
Code of Ethics for Collectors based on the principles of the 1995
UNIDROIT Convention on Stolen or Illegally Exported Cultural
Objects; (iii) renew its commitment to undertake "studies" done by
experts "to clarify issues on cultural objects that are disputed and
unclear" (noting that to date only one such study has been done);
(iv) while working with the World Heritage Committee and others,
endeavor to distill a set of general principles which could guide
interpretation of the various international instruments regarding
the treatment of cultural heritage; (v) prepare educational
materials for local people aimed at heightening their awareness of
the value of antiquities and monuments as part of their history,
including preparing a study of cases where such initiatives have
been successfully done; (vi) conduct a study on what legal
requirements judicial courts in art market States are demanding
before they will declare a claimant State to be the owner of an
antiquity; (vii) try to develop a methodology to quantify annually
in monetary terms reliable statistical information that can measure
the extent of illicit trade in cultural heritage; (viii) conduct a
study on the pro's and the con's of disposing of museum duplicates
(as a means to reduce illicit traffic),with the objective of
establishing an authoritative statement on the issue of duplicates;
(ix) illustrate best practices in establishing inventories of
cultural heritage collections, on the theory that good inventories
enable collections to be properly managed, are an essential tool in
proving the provenance of an object, and assist in the fight against
illicit traffic; and finally (x) conduct a study of how tax
deduction regimes are applied vis-`-vis cultural properties,
including whether it must be shown as a precondition for such
deductions that the object has not been illicitly exported since

1970.


6. One Korean expert, Professor Kim Chang-gyoo noted that the role
of mediation under the Committee's auspices is still not
well-formulated and needs more detailed guidelines. A Mexican
expert, Professor Jorge Sanchez-Cordero, vehemently argued the need
for the international community to draft a "model law" on State
ownership that could then be used as a common template by States so
that their laws in this regard become more harmonious. This would
facilitate the judicial and other resolution of disputes relating to
cultural heritage objects the ownership of which is claimed by a
sovereign State. Sanchez-Cordero stressed that the model law
approach had been successfully used in the United States with the
Uniform Commercial Code (UCC) to facilitate the resolution of
commercial disputes. (Prof. O'Keefe and others found this idea
attractive).


7. Salient Points from the Experts' Meeting: Session Two. UK
Barrister Mr. Norman Palmer (who served as session moderator) asked
panelists to bear in mind three questions that could help illuminate
and broaden understanding of returns of cultural properties to their
countries of origin. Those questions were: (a) What were the "right
conditions" that made restitution possible in a given instance, and
can those conditions be replicated elsewhere?; (b) What was the
process used: diplomatic, unilateral, inter-State; inter-museum?;
and (c) What was the document or instrument used to effectuate the
return: a gift, a loan, the unconditional ceding of title, an
arrangement involving an exchange/swap? Korean Expert Professor
Boa Rhee offered a detailed and succinct history of Japanese pillage
of Korean cultural heritage dating back to the Japanese invasion of
Korea in 1592, then again during the Russo-Japanese War (1904-5),
followed by Japan's annexation of Korea (1910) and most recently
during the Korean War (1950-53). She noted the repatriation of the
Korean Bukgwan Victory Monument as an exceptional but rare example
of Japanese repatriation to South Korea of one of its cultural
heritage properties. South Korea in turn repatriated that Monument
to North Korea.


8. Italian Professor Tullio Scovazzi offered two recent examples
involving returns of cultural objects by Italy to Libya (a Venus of
Cyrene statue) and to Ethiopia (the Axum Obelisk). He asserted that
these cases have helped to promote three emerging principles of
international law relevant to the return of cultural objects: (i)
the principle of the non-impoverishment of the cultural heritage of
States of origin; (ii) the principle of non-exploitation of the
weakness of other countries to achieve a cultural gain; and (iii)
the principle of the preservation of the integrity of cultural,
including World Heritage, sites. Scovazzi then offered the
provocative idea that the international regime of transnational
movements of cultural properties could be better controlled by
borrowing certain restrictions and principles found in the Basel
Convention on the Control of Transboundary Movements of Hazardous
Wastes and Their Disposal. For instance, the Basel Convention
prohibits "covert movements" of wastes and "movements without the
previous explicit consent of the potentially affected State." It
contains other similar constraints and obligations for States
parties. GoK Expert, LEE Nan-young, contrasted the United States'
return of a precious Korean flag (taken in 1871 before U.S.-Korean
diplomatic relations were established) following a negotiation that
lasted only one year with Korea's protracted and still unsuccessful
attempts to retrieve from France large volumes of imperial archival
materials (taken during a French 1866 invasion). Swiss Expert,
Prof. Marc-Andre Renold, said that UNESCO has a duty to keep track
of all outstanding disputes involving demands for returns of
cultural property. Renold endorsed Prof. O'Keefe's list of
suggestions and the "model law" idea suggested by Prof.
Sanchez-Cordero.


9. Salient Points from Experts' Meeting: Session Three. France came
in for yet another round of withering criticism for having removed
from Korea the imperial archives of the Emperor Joseon Era. A
UNESCO Expert, Etienne Clement, described the loss of Cambodian
Khmer statues and other cultural items in connection with the
conflict there during the 1970's. Many of those items were later
found in U.S. museums and galleries. Major U.S. museums, the U. S.
Government (the State Department in particular),and also France,
Thailand, and the Netherlands were complimented for playing a
constructive role in facilitating or effectuating the return of many
of those objects. It was noted that the substantive provisions of
the 1970 Convention served as the legal framework for the return of
those Cambodian properties. Chinese Government Expert, Zhang
Jianxin, set forth in specific detail the Chinese Government's
position on issues relating to the return of cultural property to
its country of origin. Zhang, referring to "significant cultural
objects displaced in history," specifically appealed to "relevant
countries, institutions and individuals . . . to return those
cultural objects illegally displaced to their countries of origin."
He added that museums should "realize they should no longer purchase
and collect cultural objects with unknown provenance." During the
brief time for questions and answers, a local French diplomat took
the floor and launched a spirited defense of France's position on
the return of Korean objects. He refuted many of the allegations
made, but readily volunteered that because those Korean imperial
archives are now part of France's heritage, it will be "impossible
under French law to transfer them back to Korea or to send them
elsewhere." (Comment: Many delegates later whispered that they
found this a shocking admission).


10. Discussion re "Experts' Conclusions". At the end of the day,
the Experts group began reviewing a draft set of "Conclusions." The
U.S. and other government Observer Delegations were permitted to
comment on the draft text, but only after it had been largely agreed
to by the Experts. The U.S. asked to delete the reference to
"discussions taking place on the return of cultural property
displaced during World War II", explaining that those discussions
were very delicate, that they were taking place under UNESCO
auspices and pursuant to other instruments such as the Washington
Principles and Vilnius Declaration. (Comment: Our request was
intended to emphasize the need to ensure that both expert and
Committee meetings do not blur the line between the Committee's
mandate regarding the return of cultural property to its country of
origin and the on-going discussions taking place regarding cultural
property displaced during World War II). Moreover, as currently
worded, the Experts Conclusions would leave the erroneous impression
that this issue had been discussed at their forum. The Experts
evinced a strong reluctance, however, to alter the text of the
Conclusions. The U.S. suggestion was not accepted. U.S. concerns,
however, were to some degree assuaged in a companion note addressed
to the UNESCO Director-General that was signed by the Expert who
oversaw the drafting of the Conclusions (Professor Lyndel Prott).
That note, published as an integral part of the Conclusions, says
"The reference to 'current discussions on the return of cultural
property displaced in connection with the Second World War' was
intended to include national efforts on spoliation issues as well as
international initiatives such as the Washington Principles, Vilnius
Declaration and discussions within UNESCO and the Council of
Europe."


11. Extraordinary Session of the Committee. By acclamation, it was
agreed that Korean Professor Lee Keun-Gwan would chair the
Committee, and he performed this task very ably throughout. A
number of new ideas or noteworthy observations emerged during the
Committee's deliberations during the two following days. Japanese
expert Professor Toshiyuki Kono discouraged the Committee from
becoming more active in dispute mediation/conciliation, pointing out
the drawbacks encountered by WIPO in its mediation process (e.g.,
high cost and non-disclosure of case results). The U.S. agreed
that the Committee should be very circumspect about moving the
Committee in the direction of greater involvement in
conciliation/mediation; any such move in that direction would
require very careful consideration. Canada (sitting as an Observer
State, represented by the immediately preceding Chairperson of the
Committee, Catherine Zedde),however, took a more open view towards
conciliation/mediation, though acknowledged that this should not be
the Committee's primary focus right now. Egypt complained about the
excessively short time delay (3-4 days) between public notices of
auctions and the eventual sales and said that the International Code
for Dealers should be amended to make the pre-sale interval longer.
The UNESCO Legal Advisor, upon request, opined that the UNESCO
General Conference would have the sole authority to amend that Code,
as it was the entity that authorized the Code. There were a
number of interventions from Committee members (Italy, for one)
calling for the draft rules on conciliation/mediation to be
finalized and adopted by the Committee.


12. Expert, Professor Lyndel Prott noted that most art dealers are
either reluctant to use the International Code for Art Dealers or
worse they are outright hostile to it. Assistant Director-General,
Francoise Riviere said that the Model Export Certificate in use
needed to be updated to address illicit sales and exports taking
place in today's modern context, including sales consummated on the
Internet. Riviere also suggested that the Committee begin
directing more of its attention away from the inter-governmental
arena and more towards museums and other private actors. (Comment:
This suggestion by a senior UNESCO official underscores the need
for Mission and USG vigilance to try to ensure that UNESCO as an
international institution does not assume a "big-brother", traffic
cop role vis-`-vis the activities of museums and other private
actors.) Egypt proposed that greater attention needs to be given to
inventorying cultural items that are in storage. Greece gave a
summary of the March 2008 Athens Conference on the return of
cultural property to its country of origin and stressed two major
themes that emerged from that conference: (i) a growing sense of
"ethical norms" that transcend legal technicalities and (ii) the
importance of ascertaining whether a cultural object whose return is
requested is considered as a "sine qua non" of the requesting
country's cultural heritage. The U.S. (along with France and
Germany sitting as Observer States) opposed Italy's suggestion that
the Committee "endorse" the Conclusions adopted at both the Athens
Conference and at the Seoul Experts' meeting. Saudi Arabia
suggested that the Committee should adopt some of the Seoul Experts'
conclusions in one of its Recommendations. After debate, however,
it was ultimately agreed to only "take note" of both sets of
conclusions (with Japan shown as formally opposing).


13. Professor Lyndel Prott presented in power-point format an
excellent "Compendium on Historical, Philosophical, and Legal
Approaches to Issues of Return and Restitution. One of the more
provocative and iconoclastic presenters among the group was Prof.
Ana Vrdoljak (U. of West Australia) who discussed "The history and
evolution of International Cultural Heritage Law" as it relates to
removals and returns of cultural objects. Among some of her
recommendations was that the Committee attempt to "codify"
international law in this field of activity and that contributions
to the Fund of the Intergovernmental Committee be made compulsory.
A Kenyan Government expert, Mr. Kiprop Lagat, stated that the Kenyan
and other African Governments do not accept as an excuse for
non-return that sub-Saharan African museums and local governments
cannot properly protect the cultural items that would be returned.
He said that Kenya has not yet made any formal demands to the
British Museum for return of items, but his use of the term "yet"
seemed to imply that this could be envisaged. He noted that some
duplicates have been given to Kenya by the UK and he alluded to a
2004 Kenya-UK Memorandum of Agreement to cooperate on loans of
cultural property. During a question and answer interval, a
heretofore silent representative of the Iran Cultural Heritage,
Handicrafts and Tourism Organization piped up to accuse the United
States Government of politicizing and holding "hostage to political
interests" certain rare Iranian/Persian tablets (a reference to the
pending Jenny Rubin civil lawsuit over Persian tablets on loan to
the University of Chicago). The U.S. took the floor to correct the
erroneous suggestion that the U.S. Government had politicized the
claim to those tablets. The U.S. representative pointed out that
the Government of Iran itself had apparently sought to politicize
that litigation by refusing to respect the U.S. court system and
duly making an appearance before court as expected to assert that
the tablets were immune from seizure. We noted that after much
delay, Iran did properly assert immunity and the matter remains sub
judice.


14. Committee's Closing Session. Before the Committee turned its
discussion to the specific Recommendations proposed for adoption at
this session, there was a final round of shadow-boxing between the
Koreans, on one side, and the French and Japanese, on the other,
concerning certain unreturned items of Korean cultural heritage
(discussed above). Korea said it rejected France's invocation of
French domestic law as a basis for refusing to return the archival
documents in question, asserting that this violated a basic
principle of customary international law. Japan justified its
stance by saying that a 1965 Japan-Korean Agreement represented a
final and complete resolution of these issues.


15. By pre-arrangement with the Chairman, just before closure of the
discussion and debate phase of the meeting, the U.S. representative
intervened to propose that the Committee consider holding its
meetings more regularly, i.e., once a year rather than once every
two years, as currently done. (This proposal had been pre-cleared
with both the Department and Ambassador Oliver). Many new and
important developments are occurring in the field of cultural
property returns, we explained, and at its present pace the
Committee will always be lagging behind. There was wide support in
the room for this idea, including from A/DG Riviere who said the
timing of this proposal was good, as her Sector is currently
drafting a proposed budget for the next biennium. However, Japan
vociferously objected, urging that we keep to the status quo pace of
meetings. (The Japanese had previously informed us privately of
their fear that more meetings will simply give the Koreans more
opportunities to browbeat them in public over non-return issues.
However, the Japanese have failed to sufficiently appreciate that
their concerns can be better managed within a framework of more
frequently-scheduled "regular" meetings of the Committee held at
UNESCO headquarters in Paris, which should limit the holding of
"extraordinary" meetings like the one in Seoul where host countries
can orchestrate their narrow political agendas under the guise of a
Committee meeting). The U.S. put forward in writing its draft
recommendation asking that this suggestion be placed on the agenda
at the Committee's next regular session for discussion. Japan
reiterated its strong opposition to more frequent regular meetings,
but its line of reasoning became increasingly incoherent, and Japan
soon found itself completely isolated. The Chairman reminded Japan
of the United States' point that this extraordinary Committee
session was not being asked to make a final decision on whether to
approve the U.S. suggestion, only that the Committee give this idea
consideration at its next meeting. The Chairman noted there was
strong support in the room for the U.S. idea. A/DG Riviere then
intervened to say that, taking into account the Chairman's favorable
observations regarding this proposal, rather than taking additional
time at that late hour to debate the final wording on the U.S.
Recommendation, she would give her personal assurance that the U.S.
proposal will be included within the agenda for discussion at the
next Committee meeting in May 2009. As the time had come to close
the meeting, Japan relented.


16. Beyond the issue of frequency of Committee meetings, the U.S.
also achieved success in persuading the Committee to delete or
modify three other problematic operative paragraphs. We eliminated
one paragraph in which the Committee would have affirmed that it
"Supports drafting of a model law for the protection of cultural
property, to be proposed to States for their consideration, taking
into account their specific legislations." We were able to change
another to say "Invites States to consider becoming parties to . . .
international instruments" rather than "become parties." And, we
were able to remove a third paragraph (proposed by Italy) that would
have said "Invites the Director-General to prepare a draft document
outlining the principles of international law and the procedures to
be followed for return of cultural property." The final set of
Recommendations, as adopted by the Committee, is available at
UNESCO's website.


17. Comment. This extraordinary session of the Committee was
clearly worth the effort, in terms of its overall substantive value
and timeliness. For the United States, the meeting produced a good
outcome that had been fortified in advance by two discussions that
Ambassador Oliver had had with the Korean Ambassador to UNESCO in
which she candidly expressed the substantive and procedural U.S.
concerns regarding certain aspects and possible ramifications of the
Experts' Meeting. This was a session at which the U.S. needed to
have boots on the ground in order to prevent a number of
objectionable and potentially dangerous elements from slipping into
the Committee's Recommendations and future working methods. U.S.
presence also was influential in preventing the Experts' Conclusions
from becoming too intrusive vis-`-vis the Committee's deliberations.
The Japanese and French Governments, by contrast, must be far less
comfortable with the outcome of this meeting. As UNESCO committees
go, the focus and professionalism of this Committee and its
participants are comparatively high and thus give it the potential
to make constructive contributions in the field of return of
cultural property to its country of origin. Though there may be
further resistance, there is a good chance the Committee will agree
to adopt the U.S. proposal to begin meeting annually. It is highly
likely that, as part of the Committee's consideration of "a strategy
for [its] future work", it will gradually begin studying and then
implementing some of the innovative ideas that emerged from the
Experts' meeting. It is clear that, as a result of what the United
States is doing at the federal level (specifically, the State
Department and Homeland Security),the U.S. is currently seen in a
favorable light both within the Committee and by other stakeholders
in this field. Indicative of this was the strong support that Peru
openly provided in support of nearly each U.S. intervention.


18. Comment cont'd. As the issue of cultural property returns
continues to gain greater visibility and the number of requests for
returns continues to grow, the Committee will likely be asked to
play an increasingly prominent role, including in the areas of
mediation/conciliation and standard setting. Moreover, it has
become unmistakably clear that the issue of the return of cultural
property to its country of origin is braced to become more political
and more contentious in the period ahead. Accordingly, continued
U.S. leadership on this issue at UNESCO and U.S. monitoring of the
Committee's activities will be key to managing that process.
End Comment.

Oliver