Evolution of the Customary International Law on Cultural Property Plundered in War YADONG, ZHANG ZHANG YADONG Abstract: is article presents an unambiguous evolutionary [email protected] sequence of historical events leading to the development of Renmin University of China, China customary international law, seen with reference to the mutual influence and transformation of legal philosophy, practice and codification on plundering cultural property during wars. e Opole Studies in Administration and Law e contemporary legal rules and customs working against Opole University Press, Polonia taking cultural property as spoils of war are rooted in the ISSN: 1731-8297 eighteenth century, and were consistently developed in the ISSN-e: 2658-1922 Periodicity: Trimestral nineteenth and twentieth centuries. Restitution appears the vol. 18, no. 4, 2020 best remedy for the country of origin, especially in the [email protected] condition where the plundered cultural property is existent and Received: 30 November 2020 identifiable. Achieving this goal depends on the cooperation and Accepted: 19 January 2021 coordination throughout the world, based on a wider customary international law space. Keywords: cultural property, plunder of URL: http://portal.amelica.org/ameli/ jatsRepo/463/4632029009/index.html cultural property, customary international law, spoils of war Keywords: cultural property, plunder of cultural property, customary international law, spoils of war. 1. Formation of rules prohibiting looting of cultural property initially in modern international law in Europe Originally, beginning with the Westphalian Peace Treaty (Penna 1997: 258) of 1648, European monarchs started to give up plundering enemies’ cultural property during wars. us, from the mid-17th to the 18th centuries, plundering cultural property across Europe was almost completely abandoned during armed conflicts (Bordwell 1908: 62). Until the end of the 18th century, European states had avoided plundering cultural property in wars on this basis. is was the earliest foundation of modern international law in which European sovereign states took unified action on the protection of cultural property. is practice of determining common regional rules through the form of treaties and implementing them and obeying each other among these European countries, is one of the necessary conditions for customary international law. Technically speaking, if a country is capable of participating in a war and winning, thus this country would never lack in the possibility of plundering the wealth of invaded territory. Even if some countries were too weak to participate in robbery during the war, it was not a common reason for all sovereign states that gave up plundering of cultural property. Naturally, when sovereigns have a strong interest in art and are capable of plundering these treasures, they have no reason to abandon plunder. ird, although the winning countries could plunder cultural properties based on the conventional right to conquer, they give up plundering. Obviously, the giving up looting does not result from the lack of a legal basis. e author believes that abstaining from looting is due to changes in the concepts of the right to conquer, which had been limited by the ideal of justice in war. e changes to the right to conquer are mainly reflected in the areas outlined below. Non-profit publishing model to preserve the academic and open nature of scientific communication PDF generated from XML JATS4R The Opole Studies in Administration and Law, 2020, 18(4), October-December, ISSN: 1731-8297 / 2658... Because of the impact of the Enlightenment thought, since the middle of the 17th century, some leading scholars in the area of international law have initiated in-depth discussions on the restrictions on war and on the right to conquer. Most of these statements link the looting of cultural property with the doctrine of Military Necessity, which determines whether cultural property can be looted, or what kind of property can be looted in war. Pufendorf, for instance, claimed that humanitarian law requires us not to destroy any enemy’s property except in the condition of necessity (1931: 256). Huge Grotius argued that there is no need to use armed force with reference to spheres that are not threatening the army during the war and which provide the spiritual support for society, like temples and church properties (1925: 751). And on the basis of Huge Grotius’s idea, De Vattel proposed to make further restriction on the properties which should not be confiscated, precluding more kinds of cultural property from the scope of the booty (1758: 168). e military necessity doctrine later became a basic principle of the law of war, laying the foundation for the basic legal rules concerning protection of cultural property in the 19th-century wars. As we all know, historically, the tendency of preference and appreciation for works of art and cultural objects, was intensively aroused by the thriving of humanism from the Renaissance era (Biroy 1997-1998: 205-206). is tendency also affected the interest of later jurists when they paid attention to the safeguards of cultural property. According to de Vattel, international law absolutely negated savage and unlimited vandalism of cultural property (1797: 370). Cicero’s remarks, along with De Vettel’s, played a vital role in reversing public legal thoughts and social ideal from plundering of cultural property. Gradually, European countries began to avoid plundering enemy’s artworks and cultural objects, and through the Westphalian Treaty, they established rules to prevent plunder of cultural property during war at the level of international law. Following that, European monarchs complied with the Westphalian Treaty agreements for more than 100 years, thereby overturning the brutal custom of plundering cultural property in wars and establishing new international customary law standards through national practice. Consequently, by the end of the 18th century, rules prohibiting the looting of cultural property were formed regularly in the international law as the status of international custom in wars. 2. Deepening of the forbiddance on the looting of cultural property in the nineteenth century in Europe From 1794 to 1814, the sovereign of France Empire, Napoleon, carried out a well-planned and long- lasting pillage of works of art and cultural relics across the then Europe. (For the details of Napoleon’s confiscation of artistic treasures consult Gould (1965: 31, 34, 48.). His predatory behavior is strictly violated and traitorous for the rules against the plunder of cultural property that had been formulated earlier and generally adhered to by European society. Nevertheless, the author believes that the rules of banning cultural property looting in Europe in those unbearable days, was strengthened, but not weakened, by Napoleon’s action. e reasons are as follows: first of all, Napoleon’s predatory plunder showed that he had clearly understood and recognized that in the scope of legal feasibility, the right to conquer in Europe at that time did not permit to plunder anymore; secondly, the public held a seriously negative attitude to his uncivilized behavior in Europe, which revealed that the degree of civilization in Europe at that time could no longer accept such predation; and finally, the response of other countries proved the existence of the rules against plundering, and further enhanced these rules. Countries insisted, as long as the plundered cultural property was supervised and identifiable, that return of these cultural objects was to be the sole way to remedy. e first main method of looting cultural property by France is secret looting supported by the government. As the monarch, Napoleon secretly dispatched cultural experts with his armed forces to plunder artifacts during the Belgian campaign and kept them secretly (Mainardi 1989: 156). ere was no need to do it in secret if Napoleon thought he had the right to do so. His actions precisely showed that plundering cultural relics and works of art was not an unrecognized area or judged as the right to natural warfare at PDF generated from XML JATS4R ZHANG YADONG. Evolution of the Customary International Law on Cultural Property Plundered in War that time (Mainardi 1989: 156). e second method of looting cultural property by France is by treaty to confiscate it. During the Italian campaign that began in 1796, on conduct of their monarch, Napoleon, France started to transfer the ownership of the looted artwork by signed treaties, for instance, the armistice with the Duke of Modena on 17 May 1796, the treaty with the Duke of Parma on 18 May 1796, the armistice with the Pope’s representative in Bologna on 23 June 1796, and the Treaty of Tolentino with the Pope in February of 1797 (Treue 1961: 149-150). Based on these treaty provisions that infringed the basic principles of the previous law of war, Napoleon more confidently seized artefacts, beautified his plunder, and used treaties to justify the confiscation. ese actions show that Napoleon was well aware of the basic rules of the law of war that no longer allowed the plunder of cultural property. Citizens of defeated states are naturally outraged by their loss of cultural property. Additionally, the robbery by France provoked great rage out of France, which spread widely and fast among groups of artists, art dealers and patrons from all over the world (Treue 1961: 149-150). e exception were the Italian people at that time, who actively protested against Napoleon’s looting, numerous scholars, and even some French troops who stood up against the dealings and asserted that the deed of France and Napoleon was illegal and should be punished. French soldiers also argued that the French government should return all such criminal gains. Despite the force of opposition to such a crime, it would not put an obstacle to the continuous plunder by French troops. Still, it was the first time for the whole society to express their extreme voice of objection to the legitimacy of the plunder by France (Treue 1961: 149-150).