Panel 18 Illegally Traded Cultural Artifacts: Will The

PANEL 18

ILLEGALLY TRADED CULTURAL ARTIFACTS: WILL THE MUSEUMS

SHOWING ANCIENT ARTIFACTS BE EMPTY SOON?

______

Malcolm (Max) Howlett,

Sciaroni & Associates.

The Hypothetical

For decades, Cambodian art has been acquired by private collectors and museums such as the

Melaten Museum of Brooklyn, New York, USA (“MeltMuseum”), and the Museum für

Asiatische Kunst of Berlin, Germany (Museum of Asian Art or “Asian Kunst Museum”).

These pieces of art have been bought directly at auctions, or, in the case of museums,

obtained as gifts from collectors. Among these artworks are:

• a relief from temples in Angkor dating to the 9th century which is in the collection of

the MeltMuseum (the “Relief”);

• a sandstone statue of a horse from the temple in Preah Vihear dating to the 7th century

which is part of the collection of the Asian Kunst Museum (the “Horse”); and

• a statue of a lion from the temple in Banteay Chhmar dating to the 11th century which

is part of the collection of Koh Lek Ter, a wealthy Singaporean businessman (the

“Lion”).

The École Française D’Extrême-Orient (French School for Far Eastern Studies) did extensive historical and legal research about the origins of the three artifacts. It turns out that:

• The relief was taken during the French colonial period in the 1930s by an American

archeologist with the knowledge of the local government and brought to the USA, but

no approval had been granted by the French colonial government of that time. It was

given to the MeltMuseum by the heirs of the archeologist in 1962. • Regarding the Horse, it is unknown when and by whom it was taken from Cambodia

and if any governmental body of Cambodia had agreed to its removal from the

country. It first appeared in an auction catalogue of the London auction house

Bommelham in 1981, and the Asian Kunst Museum was the winning bidder for the

artwork at the auction.

• The Lion was stolen during the unrest in Cambodia in the 1970s, then sold by a

Cambodian artifacts dealer in Phnom Penh to a British collector who sold it to Koh in

1995.

The Office of the Council of Ministers of the Royal Government of Cambodia has asked its

legal advisors if it can and should pursue claims for recovery of all three artifacts against the

Meltmuseum, the Asian Kunst Museum and Koh, what legal defenses they may have, and where to commence litigation if necessary.

THE CAMBODIAN POSITION ON RECOVERY OF ARTIFACTS

Selected Legal Instruments Regarding Protection of Cultural Property

Pre-Colonial and Colonial Property and Cultural Protection Laws

Under ancient Cambodian law the King was the owner of all immovable property in

the Kingdom of Cambodia.1 On August 11, 1863 a Treaty was made between the Emperor of

France and the King of Cambodia by which a Protectorate of France was established over

Cambodia. In 1884, a Convention between the Kingdom of Cambodia and France resulted,

in fact, in the delegation, or handing over, of the administrative power of the State to the

French.2

In 1900 the French Governor General of Indochina issued an Arrêté (in Khmer, a

“Prakas” – an administrative instrument or regulation) on the preservation of monuments and

objects of historical or artistic interest. The Prakas provided for a system of classification and

declassification of immovable properties being monuments and objects of historical or artistic

interest. Classification, and de-classification, was established by a Prakas of the Governor

General, following upon a report by the French School for Far Eastern Studies and upon the

advice of the Permanent Commission of the Superior Council of Indochina.3 Once an

immovable property had been classified, the property could only be disposed of with the

authorization of the Governor General.4 Once an immovable property had been classified it could not be destroyed, even in part (which would include its removal or partial removal), nor

1 Land Law of Cambodia, A Study and Research Manual, East West Management Institute, Inc., Phnom Penh, Cambodia, 2003, p.19, citing Kleinpeter, Roger, Le Problème foncier au Cambodge, Thèse pour le Doctorat, Paris, Les Editions Domat-Montchrestien F.Loviton & Cie, 1937, p.40-41. 2 Land Law of Cambodia, A Study and Research Manual, East West Management Institute, Inc., Phnom Penh, Cambodia, 2003, p.21. 3 Prakas of the Governor General of Indochina on preservation of monuments and objects of historical or artistic interest, March 9, 1900, Article 1. 4 Prakas of the Governor General of Indochina on preservation of monuments and objects of historical or artistic interest, March 9, 1900, Article 2.

could it be the object of any repair, restoration or modification without the consent of the

Governor General.5 Significantly, the Prakas provided that the consequences of classification

followed the classified immovable property regardless of to whom the property may have

been passed.6 The Governor General was also empowered to pursue the expropriation of

classified objects, even against private owners.7

The 1900 Arrêté (Prakas) also dealt with movable objects of historical or artistic

interest. Movable objects constituting part of the national domain, whose preservation was of public interest from the point of view of history or art, could be classified by the Director of the French School for Far Eastern Studies, such classification becoming final upon the approval of the Governor General. Declassification followed the same process as for

immovable properties.8 Once classified, such objects became inalienable and imprescriptible.9

Of particular relevance is Article 17 of the 1900 Arrêté (Prakas). It states that

“ownership of art or archeological objects, buildings, bas-reliefs, statues, medals, vases, columns or inscriptions which may exist on or in the soil of immovable properties constituting a part of the national domain in Indochina or granted by the Government to private individuals shall be reserved for the domain”.10 In this instance there was no

requirement of classification in order to establish state ownership. All such objects fitting

within the list set out in Article 17 were automatically state owned by virtue of their nature.

5 Prakas of the Governor General of Indochina on preservation of monuments and objects of historical or artistic interest, March 9, 1900, Article 4. 6 Prakas of the Governor General of Indochina on preservation of monuments and objects of historical or artistic interest, March 9, 1900, Article 8. 7 Prakas of the Governor General of Indochina on preservation of monuments and objects of historical or artistic interest, March 9, 1900, Article 9. 8 Prakas of the Governor General of Indochina on preservation of monuments and objects of historical or artistic interest, March 9, 1900, Articles 10-11. 9 Prakas of the Governor General of Indochina on preservation of monuments and objects of historical or artistic interest, March 9, 1900, Article 12. 10 Prakas of the Governor General of Indochina on preservation of monuments and objects of historical or artistic interest, March 9, 1900, Article 17.

The 1900 Arrêté (Prakas) also provided that no monument could be exported, in

whole or in part, from the territory of French Indochina (including present day Cambodia) without authorization of the Governor General. Without this authorization, such objects

would be seized by the Customs authorities, and the General Governor was then empowered

to decide upon the destination of such a piece, following the prescribed formalities, and

without prejudice to the bringing of a prosecution against an offender. This provision was

also applicable to objects that were removed from monuments prior to the promulgation of

the present Prakas, that is, before 1900, as well as to classified objects that are concealed in

violation of Articles 13 and 15 of the Prakas11. The practical effect of this provision is that no

classified object or part of a classified monument could leave Indochina without authorization

of the Governor General, including classified objects that were not part of the national

domain and that had been disposed of by sale, gift or exchange.

Collectively, these provisions mean that cultural artifacts have always been the property of the state. Title to the artifacts in question could only pass with the express authorization of the Governor General, regardless of whether the artworks were classified.

The Relief, even though it was taken with the knowledge of the local government, is subject

to these laws, as no authorization was given permitting its removal. Furthermore, according

to Article 20 of the 1900 Arrêté (Prakas), even if the Horse was removed from the temple in

Preah Vihear prior to 1900, it still would have been subject to the authorization requirements

of the Prakas. Any removal without authorization permitted Customs authorities to seize the

artifact and allowed the Governor General to decide upon its destination and bring a

prosecution against the offender.

In May, 1925 the Governor General issued another Prakas pertaining to the

classification of movable objects belonging to the colonial domain. The Prakas re-iterated

11 Prakas of the Governor General of Indochina on preservation of monuments and objects of historical or artistic interest, March 9, 1900, Article 20.

that antiquities (items of art or archaeology, sculptures, medals, money, vases, jewelry,

inscriptions, tools, or prehistoric objects, etc.,) that may be discovered on or in the grounds of

land belonging to the colonial domain, local domain, municipal domain, to a public

establishment, or an individual who has received the land under concession from the public

authority, shall be reserved for the state.12 The Prakas also provided that all movable objects

belonging to a classified immovable are also considered to be classified. Thus, a statue such

as the Horse removed from a monument that has been classified, is also classified.13

Furthermore, no antiquity, including art objects, statues, sculptures, inscriptions in stone,

wood or metal from the Indochinese origin and before the nineteenth century, could be

exported from French Indochina unless accompanied by a certificate of non-classification

issued by the Director of the French School for Far Eastern Studies or his delegates specially

appointed by him for that purpose. If the exporter could not produce the certificate of non-

classification, the object would be retained by the Customs service until such certificate could

be produced.14 This would apply to the Horse and is particularly relevant for the Relief,

which was taken shortly thereafter during the 1930’s.

Also in May, 1925, the Governor General issued another Prakas classifying certain historical monuments of Indochina. The Prakas provided that both the immovable and movable objects situated within the limits of the territorial union of Indochina that are listed and enumerated in the tables annexed to that Prakas, are classified as the historical monuments and objects of French Indochina.15 The Tables annexed to the Prakas included

670 historical monuments in Cambodia. If the artifacts are among this list of classified

12 Prakas of the Governor General of Indochina of May 6, 1925, pertaining to the classification of movable objects belonging to the colonial domain, Article 7. 13 Prakas of the Governor General of Indochina of May 6, 1925, pertaining to the classification of movable objects belonging to the colonial domain, Article 9. 14 Prakas of the Governor General of Indochina of May 6, 1925, pertaining to the classification of movable objects belonging to the colonial domain, Article 10 (with italics added). 15 Prakas of the Governor General of Indochina of May 16, 1925, pertaining to the Classification of the historical monuments of Indochina, Article 1.

monuments, this would be another legal basis for a recovery claim from the Royal

Government of Cambodia, if none of the artifacts were accompanied by a certificate of non-

classification. The Temple of Preah Vihear where the Horse originates from is one of the

monuments listed (at item 624). A series of further Prakas and other legal instruments

reinforced the system of classification and export authorization through the remainder of the

colonial period until Cambodia and remained in force even after independence was gained

from France in 1953.

Post-Independence Property and Cultural Protection Laws

In 1949, as Cambodia moved towards full independence from France, a Franco-

Cambodian Cultural Agreement transferred the functions and powers for protection, classification and conservation of historical monuments in the territory of Cambodia from the

Republic of France to the Royal Government of Cambodia.16 A Minute (Procès-Verbal) of

August 9, 1951, of the Republic of France also referenced the transfer to the Royal

Government of Cambodia the Powers of Conservation of the Historical Monuments.

According to this Minute, the power over conservation of the immovable and movable

objects (including bas-reliefs and statues) classified and in the list annexed to the Minute was

transferred to the Cambodian authorities. The Annex to the Minute refers to 785 listed

objects. If the three artifacts are found on this list, or of the temples from which they were

sourced are found on that list, it is another legal instrument that can be used by the

Cambodian authorities to support their claim for recovery.

On 21 September 1993, after more than two decades of civil warfare a new

Constitution was adopted, pursuant to which, in 1996, the Royal Government adopted a Law

on the Protection of Cultural Heritage. The purpose of the law is to protect the national

16 Franco-Cambodian Cultural Agreement of November 8th, 1949, Article 38.

cultural heritage and cultural property in general against destruction, modification, alteration,

excavation, alienation and exportation.17 The national cultural heritage includes cultural

property created on or discovered on national territory and applies to both immovable and

movable property. Cultural property is considered to be any work produced by human agency

of a historic, religious, artistic or scientific nature which bears witness to a certain stage in the

development of a civilization, and whose protection is in the public interest.18 The three

artifacts (the Relief, the Horse and the Lion), all created between the 7th and 11th century, are

clearly part of that national cultural heritage.

The 1996 Law also provided for the keeping of an inventory of public and private

cultural property and the classification or registration of public and private cultural property

from the inventory.19 Once classified, the cultural property becomes imprescriptible and once classified, the publicly owned classified property becomes inalienable.20 Sale of

classified (or proposed to be classified) private cultural property is permissible, but only if the

beneficiary is informed of the classification status and the authorities are informed of the

details of the sale.21 The alienation of materials or fragments illegally removed from cultural

property that has been classified or proposed for classification, including any transfer of

possession or control to a third party is null and void and such third parties are not entitled to

compensation from the State.22 The 1996 Law also gives the State a right of pre-emption for the purchase of any cultural property in the inventory, classified or proposed for classification, as well as a right of expropriation over such immovable cultural property.23

Under this law, the export of any cultural object is prohibited, unless a special export license

17 Law NS/RKM/0196/26 on the Protection of Cultural Heritage, January 25, 1996, Article 1. 18 Law NS/RKM/0196/26 on the Protection of Cultural Heritage, January 25, 1996, Articles 2-4. 19 Law NS/RKM/0196/26 on the Protection of Cultural Heritage, January 25, 1996, Articles 7-27. 20 Law NS/RKM/0196/26 on the Protection of Cultural Heritage, January 25, 1996, Articles 19-20. 21 Law NS/RKM/0196/26 on the Protection of Cultural Heritage, January 25, 1996, Article 21. 22 Law NS/RKM/0196/26 on the Protection of Cultural Heritage, January 25, 1996, Article 22. 23 Law NS/RKM/0196/26 on the Protection of Cultural Heritage, January 25, 1996, Articles 28-29.

has been granted for the purpose.24 Any attempt to export cultural objects without such a

license will entail the seizure and confiscation of the objects.25 The 1996 Law also provides

for a series of offenses and penalties, including imprisonment of up to eight years and fines

equal to double the value of the objects in question, for alienating cultural property classified

or proposed for classification; selling such property without informing the authorities (or the

purchaser); exporting or attempting to export such cultural property without a license and for

other offences against the law relating to the protection of such cultural property.26

International Legal Instruments Regarding Cultural Property Protection

In addition to the domestic laws discussed above, international legal instruments can

also be used to strengthen Cambodia’s claims for recovery of the artifacts. For example, of

particular importance to the Horse, from the temple in Preah Vihear, is the 1953 dispute

between Cambodia and Thailand. In response to Thailand’s claim over the temple,

Cambodia instituted proceedings in the International Court of Justice asserting its territorial sovereignty.27 In 1962 the International Court of Justice rejected the Thai claim of

sovereignty over the temple and found that the temple was situated in territory under the

sovereignty of Cambodia. On July 15, 2008, Cambodia successfully applied to have the

temple inscribed into the UNESCO World Heritage List. This classification provides a strong

basis for a claim against Germany to recover the Horse, if it was removed from Preah Vihear

without authorization.

24 Law NS/RKM/0196/26 on the Protection of Cultural Heritage, January 25, 1996, Article 51. 25 Law NS/RKM/0196/26 on the Protection of Cultural Heritage, January 25, 1996, Article 56. See also the Sub- Decree No. 98 of September 17, 2002 on the Protection of Cultural Patrimony, Article 44. 26 Law NS/RKM/0196/26 on the Protection of Cultural Heritage, January 25, 1996, Articles 63-65. 27 International Court of Justice, Case Concerning the Temple of Preah Vihear (Merits), Judgment of June 15, 1962, especially at 31-32.

In 1972 Cambodia became the seventh State to ratify the Convention on the Means of

Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural

Property (Paris, 14 November 1970). The Convention entered into force in April 24th, 1972,

and for Cambodia, three months after its ratification on September 26, 1972.28 The United

States acceded to the Convention on September 1, 1983 and Germany ratified on November

30, 2007. According to Articles 2 and 3 of the Convention, the State Parties undertake to help

“make the necessary reparations” to oppose the “illicit import, export and transfer of

ownership of cultural property”29. Article 7(b)(ii) states that all State Parties undertake “at the

request of the State Party of origin, to take the appropriate steps to recover and return any

such cultural property imported after the entry into force of this Convention in both States

concerned, provided, however, that the requesting State shall pay just compensation to an

innocent purchaser or to a person who has valid title to that property.”30 Similarly, Article 13

provides that all State Parties must facilitate “the earliest possible restitution of illicitly

exported cultural property to its rightful owner.”31 Unfortunately, both the Relief and the

Horse appear to have left Cambodia prior to the entry into force of the Convention in

Cambodia and the USA and Cambodia and Germany respectively.

In 1999, the Royal Government of Cambodia submitted a request to the Government

of the United States of America to impose restriction on the importation of Khmer cultural

objects onto US territory.32 This resulted in a 2003 Memorandum of Understanding

protecting Cambodian artifacts and preventing their import into the United States, and the

28 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Paris, 14 November 1970), Article 21. For ratification by Cambodia, see: http://www.unesco.org/eri/la/convention.asp?KO=13039&language=E&order=alpha 29 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Paris, 14 November 1970), Articles 2 and 3. 30 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Paris, 14 November 1970), Article 7. 31 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Paris, 14 November 1970), Article 13. 32 http://www.autoriteapsara.org/en/apsara/about_apsara/police/looting/international.html

2008 renewal and extension of the Memorandum of Understanding to Archaeological

Material from Cambodia from the Bronze Age through the Khmer Era. Under this

Memorandum of Understanding, the Government of the United States of America shall

restrict importation into the United States of certain categories of archaeological material

identified in its Designated List and shall offer to return them to Cambodia. In pursuing a claim for the recovery of the Relief, this Agreement may be of particular relevance.