http://www.law.upenn.edu/journals/jil/articles/volume29/issue4/Scott29U.Pa.J.Int'lL.803(2008).pdf
http://law.psu.edu/faculty/resident_faculty/scott
ARTICLES
SPOLIATION, CULTURAL PROPERTY, AND JAPAN
GEOFFREY R. SCOTT*
1. INTRODU CTION ........................................................................... 805
2. THE PROTECTION OF CULTURAL PROPERTY: CONTEMPORARY INVOLVEMENT OF JAPAN ............................. 813
3. WHO IS THE RIGHTFUL OWNER OF CULTURAL PROPERTY? THE POLITICAL CONTEXT IN THE EAST .................................... 816
4. THE JAPANESE-KOREAN CONFLICT .......................................... 824
4.1. JapaneseInvasions of Korea, 1592-1598 ............................. 825
4.2. The Late Nineteenth Centuryand ContinuingThroughJapan'sColonizationof Koreafrom 1910 to 1945 ................ 836
4.2.1. Japan, Korea, and China:The Sino-JapaneseWar,
1894-95 ........................................................................
837
4.2.2. The JapaneseProtectorateand JapaneseColonizationof Korea ................................................ 841
4.2.2.1. The Plightof CulturalPropertyDuringColonization........................................................ 845
4.2.2.2. Efforts to Inventory and ProtectCulturalPropertyDuring Colonization............. 847
5. JAPAN'S LAWS PROTECTION CULTURAL PROPERTY ................ 850
5.1. A General Domestic Structure............................................ 850
5.2. Japanand SignificantEfforts in the InternationalArena ...853
5.2.1. 1965 Japan-KoreaTreaty of Basic Relations ............. 854
Geoffrey Scott, Professor of Law at Pennsylvania State University Dickinson Law School; Director of Arts, Sports, and Entertainment Clinic; L.L.M. Yale University, J.D. Valparaiso University, B.A. Valparaiso University. The Author would like to express his deep appreciation to Hideo Yoshida of Japan's Patent Office, Gianluca Gentili, Esquire of the University of Sienna, Italy, Karen E. Maull, Esquire, and Chia-Wen Lee, Attorney, Taiwan for their invaluable assistance with this Article.
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5.2.2. The Japanese UNESCO Funds in Trustfor the Preservationof World CulturalHeritage....................... 857
5.2.3. UNESCO Convention Concerningthe Protection of World Cultureand NaturalHeritageCustoms and the Controlof Exports .................................................... 859
5.2.4. Import Controlsof Japan........................................... 860
5.2.4.1. The Development of General JapaneseCustoms Practice................................ 860
5.2.4.2. Specific Customs ControlsImposed upon CulturalProperties-Domestic Law ........ 865
5.2.4.3. Import Controls-The UNESCO Convention ........................................................ 866
5.2.4.3.1 Stolen Objects andBona Fide P urchases............................................... 874
5.2.4.3.2 Bona Fides Under the Law ConcerningControlson the Illicit Export and Importof CulturalProperty.................................. 878
5.2.5. The Law on the Promotionof InternationalCooperationRegardingCultural Heritage-2006 .............................................................. 879
5.2.6. A Cultural Understandingwith Italy-2007 ........... 880
5.2.7. HAGUE Convention-Japan'sMovement to Become a Signatory....................................................... 882
5.2.8. GeneralEfforts at Repatriationby Japan................... 885
6. CONCLUSION .......................................................................... 888
APPENDIX 1.
APPENDIX 2.
APPENDIX 3.
APPENDIX 4.
AGREEMENT CONCERNING CULTURAL PROPERTY AND EXCHANGE, AND TREATY BETWEEN JAPAN AND SOUTH KOREA CONCERNING CULTURAL PROPERTIES AND COOPERATION ................................ 889 THE LAW REGARDING THE PROMOTION OF INTERNATIONAL COOPERATION REGARDING THE PROTECTION OF THE CULTURAL HERITAGE OF A FOREIGN COUNTRY ..................................................... 892 MEMORANDUM OF UNDERSTANDING: COOPERATION FOR THE PROTECTION OF CULTURAL HERITAGE BETWEEN THE MINISTRY OF CULTURAL HERITAGE OF THE ITALIAN REPUBLIC AND THE ADMINISTRATION FOR CULTURAL HERITAGE OF THE CHINESE PEOPLE'S REPUBLIC ..... 897 9/29/2003 THE 43RD MEXT ORDINANCE ................ 901
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1. INTRODUCTION
The trade in illicit or stolen art and antiquities has recently been estimated to range from $100 million to $4 billion annually.' For several decades the attention of the West has been drawn to the spoliation of arts and culture by the Third Reich and the means, both public and private, through which appropriated objects wrenched from victims of war might be repatriated. 2 Among other theatres of significant interest have been the theft of cultural objects from Central and South America, 3 the illegal removal of art from Mediterranean countries such as Italy, Greece, and others, 4 and in the less distant past the plight of cultural property in Iraq.5 During times of armed conflict, there have been occasional shifts in interest to Africa, Asia, and the Middle East; however, recently and more frequently, world events have drawn attention to the treatment of cultural property in the East.6
1 Thomas K. Grose, Stealing History, U.S. NEWS & WORLD REP., June 19, 2006, at 40-41. 2 In 1999 a gathering was held in Tokyo entitled "International Citizen's Forum on Japanese War Atrocities and Redress." See, e.g., Paul Gordon Schalow, Japan'sWar Responsibility and the Pan-AsianMovement for Redress and Compensation: An Overview, 18 E. ASIA: AN INT'L Q. 7, 9 (2000) ("Very much on the minds of the audience and speakers at the Forum was the example of Nazi Germany. Here was a state that between 1939-45 slaughtered approximately 11 million or more people .... Immediately after the war Germany's new government had been held accountable by the world for Nazi crimes .... Nazi leaders were tried and imprisoned or executed, a system of compensation for survivors was implemented, government leaders made sincere public apologies, and by the 1980's justice was felt to have been served. The question was raised repeatedly at the Forum, 'Why cannot Japan respond to Asia similarly?'"). 3 See, e.g., United States v. McClain, 593 F.2d 658, 659 (5th Cir. 1979) (describing defendants' convictions under 18 U.S.C. §§ 371, 2314, and 2315 on the theory that the pre-Colombian artifacts with which they dealt were not stolen in the conventional sense, but were stolen because Mexico has declared itself the owner of all pre-Colombian artifacts found within Mexico); United States v. Hollinshead, 495 F.2d 1154, 1155 (9th Cir. 1974) (describing the prosecution of defendants for the theft of pre-Columbian artifacts in violation of a Guatemalan law that ascribes ownership to Guatemala of all pre-Columbian artifacts found in the nation). 4 See, e.g., Povoledo, Photographs,infra note 9 (describing the marble griffins from the Getty collection). 5 See, e.g., Ronald K. Noble, Secretary General of INTERPOL, Meeting on Cultural Property Looting in Iraq (May 6, 2003). 6 See, e.g., Schalow, supra note 2, at 7-8 ("The Nanjing Massacre and the sexual slavery of 'Comfort Women' (ianfu) have received extensive coverage in both the academic and popular presses in recent years, but the actual scope of the movement for redress and compensation is growing bigger and more complex
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One of the unlikely catalyzing events that has drawn our Western eyes eastward and drawn diverse communities of interest together derives from the current prosecutions in Italy of Robert Hecht, a prominent member of the family that founded the department store chain that bears his surname, and Marion True, a former antiquities curator of the Los Angeles based J. Paul Getty Museum, on charges that they conspired to receive and trade in cultural properties stolen from tombs and archaeological sites in Italy. 7 The details of this story began to unfold in 1995 when an investigation into claims of art theft led Italian police to a warehouse in Geneva operated by a dealer in antiquities by the name of Giacomo Medici. Inside the warehouse, detectives found a treasure trove of purloined art and antiquities as well as a host of documents and photographs. The evidence seized was ultimately employed by Italian prosecutors to secure a conviction against Medici in 2005 on the charge of illegally exporting cultural objects
with every passing year. Besides the Nanjing Massacre and sexual slavery, Asian victims are suing for justice for: the forced relocation to Japan of Chinese and Korean slave laborers who toiled under brutal conditions .... ;bombing of civilian targets .... ; the extermination of villages .. ; the illegal use of biological and chemical weapons...; the vivisection and murder of human subjects for purposes of medical education and experimentation;.., the systematic looting of hundreds of thousands of irreplaceable books... .; and the plundering of Asia's wealth, including gold, cash, and art objects which were removed to Japan.").
The issue of the "Comfort Women" has continued to be raised by Korea, and it is symbolic of the emotional and political content of the discussions between the countries as well as the continuing course of recriminations of Japan by Korea, both North and South. Various Japanese Prime Ministers, including past Prime Minister Shinzo Abe, have in fact addressed the issue, however, any remarks that have been made have generally been deemed inadequate. In addition, episodes such as the admitted abductions by North Korea of Japanese citizens during the 1970s and 80s in order that they may be trained as spies has also frustrated any dialogue between Japan and Korea. See Hisane Masaki, 'Comfort Women' and the Abductee Issue, OHMYNEws, Mar. 8, 2007, http://english.ohmynews.com/ articleview/article-view.asp?menu=c10400&no=349083&rel_no=1 (discussing North Korean and global frustration at Japan's inadequate acknowledgement of its use of "comfort women" before and during World War II, as well as tension between Japan and North Korea related to the latter nation's abduction of seventeen Japanese nationals).
7 The trial began in November of 2005 and will likely last well into 2007. The Italian court that has jurisdiction over the trial met only episodically as is the custom in Italy.
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from Italy. 8 Some of that same evidence is now being utilized in the case against Hecht and True. 9
Testimony at the current trial suggested the existence of a much larger network of illicit activity that went beyond Europe and to Japan, and investigators expanded their focus of inquiry to include the questionable dealings of another antiquities trader, Gianfranco Becchina of Sicily. While Mr. Becchina has not been formally charged, he is, according to the chief prosecutor Paolo Ferri, under
8 Among other charges, Medici was convicted in 2005 of the illegal export of antiquities from Italy. See Grose, supra note 1, at 43. See also Kazuki Matsuura, Records Tie Japan to Art Theft, YOMIURI SHIMBUN (Japan), Jan. 16, 2007, at 2 (stating that Medici, a business rival of Gianfranco Becchina, was initially arrested in 1997 on charges of illegally dealing in art and antiquities and sentenced to ten years in prison). 9 One of the photographs introduced into evidence on May 30, 2006 in the Hecht/True trial depicted Medici standing at the Getty Villa with a pair of fourth century marble griffins Italy claims to have been removed illegally from the country. Another photo showed the griffins encrusted with soil, wrapped in newspaper, and lying in the trunk of an automobile. The griffins are currently part of the Getty collection and on view at the Villa which houses a collection of Greek, Etruscan, and Roman objects. Italy has requested the return of the griffins along with numerous other kraters, amphorae, and other objects it claims to have been illegally removed. The Getty purported to have purchased the griffins from Maurice Templesman in 1985, and the sale was allegedly brokered by Robin Symes of London. The alleged link between the griffins and other Italian cultural treasures was made by Salvatore, a member of Italy's Art Theft Squad. Officers from the Squad were examining contents of the Civic Museum in Foggia, Italy and came upon certain funerary objects that had been stored there after recovery in 1978 from Savino Berardi, an alleged tombaroli (tomb raider). Mr. Morando said,
[Tihe investigators realized that the vessels were made of Parian marble, a rare, semi-translucent white stone quarried in ancient times on the Greek island of Paros. They bore faint traces of polychromatic decoration in specks of red, light blue and pink.
... [T]he type of marble and its decoration prompted a leading expert, the archaeologist Angelo Bottin, to link them directly to the much-better-known griffins at the Getty Villa.
Elisabetta Povoledo, Photographsof Getty Griffins in Car Trunk Shown at Rome Trial,
N.Y. TIMES, June 1, 2006, at E3 [hereinafter Povoledo, Photographs]. Considering the many claims for the repatriation of cultural treasures one might ask by what right Italy as opposed to Greece claims the griffins? This is one of the most difficult issues that must be addressed when considering ownership of cultural objects, i.e., who has the necessary and appropriate connection to an object such that they can make a legitimate claim. For a discussion of this and related issues, see generally Geoffrey R. Scott, A Comparative View of Copyright as Cultural Property in Japan and the United States, 20 TEMP. INT'L. & COMP. L.J. 283, 283-362 (2006) (discussing the "various historical and contemporary influences
that have affected the legal definitions of cultural and intellectual property in Japan and the United States").
808 U. Pa. 1.Int'l. L. [Vol. 29:4
investigation,10 and he is expected to go on trial in the near future.1 This new avenue of inquiry was precipitated by the testimony at the Hecht/True trial of Giuseppe Putrino, an officer with the Italian Art Theft Squad. In court Putrino described several raids in 2005 including those of a warehouse, owned by Becchina, which was located in Basel, Switzerland, the offices of Palladion Ancient and Fine Art in Basel operated by Ursula Becchina, wife of Gianfranco, 12 and the Becchina home in Castelvetrano, Sicily. 13 During these events, approximately 10,000 photographs of items claimed to have been illegally excavated in or illicitly removed from Italy14 and Greece i5 were confiscated, and
10 In 1999 and pursuant to the Mutual Assistance Treaty, Italy made a request of the United States for the return of a krater executed by the renowned Italian painter, Asteas. The krater was in the collection of the Getty Museum, which had purchased the krater from Gianfranco Becchina in or about 1983 for $275,000. Pursuant to a consent decree between the Getty Museum and Italian authorities that was brokered by the U.S. Attorneys' Office, in 2005 the museum voluntarily surrendered possession of the krater. For example, the U.S. Immigration and Customs Enforcement agency reported:
A 2,300-year-old vase that was allegedly smuggled out of Italy and ended up in the Getty Museum's antiquities collection arrived in Rome this week, capping a joint effort by Italian authorities, the United State's [sic?] Attorney's Office, and U.S. Immigration and Customs Enforcement (ICE) to return the artefact to its original home ....
... [The krater had] an appraised value of approximately $350,000. According to the forfeiture complaint filed in the case, the vase was unearthed by a labourer doing maintenance work on Italy's canals during the 1970's. Initially offered a price of one million lire, the worker told Italian authorities he ultimately traded he artefact to a notorious Italian antiquities trafficker in exchange for a pig. In 1978, according to the forfeiture complaint, a former Getty curator saw the krater in Switzerland where it was held by a private owner and two years later arranged for the Museum to bring it to the United State on loan. After three years, the Getty formally purchased the artefact from European art dealer, Gianfranco Becchina ....
News Release, U.S. Immigration and Customs Enforcement Agency, Vase Seized by ICE From Getty Museum Returned to Italy (Nov. 10, 2005), available at http://www.ice.gov/pi/news/newsreleases/articles/051110losangeles.htm.
11 Grose, supranote 1.12 Elisabetta Povoledo, Focus in Getty Trial Shifts to a SicilianAntiquities Dealer,
N.Y. TIMES, Apr. 27, 2006, at E3 [hereinafter Povoledo, Focus]. 13 Id.
14 Matsuura, supra note 9. 15 In December 2006, the Getty Museum agreed to return a fourth century BCE wreath and a sixth century BCE kore (statue of a woman) that were allegedly illegally excavated in and removed from Greece. The return was with the help of Italian authorities. The wreath is believed to have been executed by the craftsman who forged the royal wreath of Philip of Macedonia, father of Alexander the
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approximately 200 bundles of receipts, faxes, invoices, and letters were seized. Some of these items allegedly link Becchina 16 to American and Japanese museums, 17 collectors, or dealers. 18
For example, one receipt found among the proceeds of the raids documented an April 1991 transaction between Becchina and a Japanese art dealer based in London. Although the art dealer disclaims any contact with Becchina since 1989,19 Italian prosecutors purport to have photographic evidence seized in the Becchina raids that depict items the dealer allegedly purchased for the Miho Museum, 20 a private institution located in Koka, Shiga Prefecture in Western Japan. 21 Among the approximately fifty
illicit articles believed to be in the possession of the museum are sculptures and frescoes allegedly from ancient Rome. 22 In response to the claims of Italy, Hiroaki Katayama, the Chief
great. A middleman allegedly attempted to sell the wreath to Gianfranco Becchina; however, he declined to purchase the object. Italian investigators uncovered photographs of the wreath among the items confiscated in the raid on premises controlled by Becchina, and turned the information over to Greek officials. In July of 2006 the Getty also returned a large stele and a marble relief from the Island of Thassos to Greece. See Anthee Carassava, Greeks Hail Getty Museum's Pledge to Return Treasures, N.Y. TIMEs, Dec. 12, 2006, at El (describing efforts by European authorities to negotiate with the Getty Museum for the return of illegally removed artifacts).
16 Mr. Becchina was claimed to have once been a major supplier of objects to
the Getty, however, the relationship allegedly degenerated, according to Putrino, following the discovery that a marble kouros (naked youth) he sold to the Getty in 1983 for $10 million had been a fake.
17 According to news sources, the Italian government has asked six U.S. museums, including the Getty and the Metropolitan Museum of Art in New York, to return approximately 100 objects claimed to have been illegally taken from the country. The Getty alone was asked for forty-seven objects. As of January, 2007 the Getty had agree to return twenty-six. In declining to return the remaining objects, it has asserted that the evidence, to date, of the other twenty does not place the legitimate provenance of the objects in question. Kazuki Matsuura, Italy Wants JapaneseMuseums to Return "Stolen" Items, YOMIURI SHIMBUN (Japan), Jan. 12, 2007. 18 Id. See also Povoledo, Photographs, supra note 9 (describing how dealers would have been willing to purchase the Getty griffins). 19 Matsuura, supranote 17. 20 The Miho Museum is a private institution generally housing objects owned by private individuals. Miho Museum, http://www.miho.or.jp/english/ index.htm (last visited Feb. 27, 2008).
21 Matsuura, supranote 17.
22 Justin McCurry, Italy to Ask Japan For Return of 'Looted'Antiques, GUARDIAN NEWS, Jan. 11, 2007, availableathttp://www.guardian.co.uk/world/2007/jan/ 11/italy.japan ("About 50 of the missing treasures, including a sculpture and fresco painting, are being kept at the Miho museum....").
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Curator of the museum, recently stated that the museum neither possesses the number of items from the Roman period that is claimed to be in its collection nor does he believe that the collection includes anything that was illegally excavated. 23 Notwithstanding these protestations, Italian officials assert that they will soon formulate an official request directed to Japan for the return of over 100 cultural or artistic objects they believe were stolen from their country and which are currently in Japan. 24 In summing up the testimony, prosecutor Paolo Ferri characterized the tangled web of intrigue: "This was one big swamp where many swam and many others came to drink ....25
A second world condition which, perhaps serendipitously, has drawn Eastern eyes westward to meet our gaze, is the shared interest in the plight of Afghanistan and the countries of the Middle East. 26 In this regard, Ikuo Hirayama, 27 President of the Tokyo University of fine Arts and Music and President of the Japanese National Commission for UNESCO stated:
Afghanistan is located at the crossroads of Eastern and Western culture and history ....The Buddhist culture of India went north and encountered Persian culture and even Greek Hellenism coming from the west directly through the reign of Alexander the Great. In the east over the Pamir
23 Hisane Masaki, Japan Still a Cultural Looter?, OHMYNEWS, Jan. 15, 2007, http://english.ohmynews.com/articleview/article-view.asp?menu=c10400&no= 339994&relno=1.
24 Id. For a recent news story reporting recent activities with respect to the return to Italy of cultural properties from a New York collector and an October 2007 agreement for return with Princeton University, see Generous New York Dealer Returns Italian Artefacts,LIFEINITALY, Nov. 7,2007, http://www.lifeinitaly.com/ news/news-detailed.asp?newsid=7243. 25 Povoledo, Focus,supranote 12.
26See, e.g., U.N. EDUC., SCI AND CULTURAL ORG. [UNESCO], AFGHANISTAN: A NATION AT THE CROSSROADS 38-63 (2002), availableat http://unesdoc.unesco.org/ images/0012/001278/127885e.pdf (a UNESCO report on Afghanistan that exemplifies interest in Afghanistan). See also The UNESCO/Japan Funds-in-Trust, www.unesco.emb-japan.go.jp/htm/mofaworld.htm (last visited Apr. 5, 2008).
27 Hirayama is also a famous Japanese painter, head of the Council for the
Promotion of International Cooperation on Cultural Properties, a U.N. Goodwill Ambassador, and President of the Japan-China Friendship Association. For a brief biography see UNESCO, Unesco Celebrity Advocates Ikuo Hirayama,
http://portal.unesco.org/en/ev.php-URLID=8311&URL DO=DOTOPIC& URLSECTION=201.html. See also, Furuya Keiji Tsushin: "Bunka Isan Kokusai Kyoryoku Ho" ga Seiritsu [Keiji Furuya Internet Announcement: "Act on the Promotion of International Cooperation Regarding Cultural Heritage" Passed the Diet], June 16, 2006, www.furuya-keiji.jp/2006/06/post_26.html.
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and Tianshan mountains lies China. When I look at the
cultural heritage of Afghanistan, I feel that we share the
same cultural DNA....
28
During two recent periods, Afghanistan has been the victim of savage attacks upon its cultural heritage. The first followed the invasion of the Soviet Union in 1979; the second began in 1996 under the rule of the Taliban. In an interview in 2002, Abdullah Wassay Ferozi, the Director General of the Afghanistan Center of Archaeology, stated: "The destruction has lasted more than twenty-two years. The looting and then the Taliban. They totally destroyed everything they could, all the objects which introduced the previous Afghanistan history." 29
It is now estimated that the greatest proportion of destruction in Afghanistan, perhaps up to seventy-five percent, occurred between 1992 and 2002. A credible symbol of the grave losses that were suffered by the country during that period is the decimation of the two great Buddhas at Bamiyan. Believed to have been created between the fourth and fifth centuries CE the Buddhas, fifty-five and thiry-eight meters high respectively, were first documented in 632 CE by Hiyuan Tsang, a visiting Chinese monk. Each had been placed in a niche approximately 2,590 meters above sea level in the northern cliffs of the Hindu Kush Mountains to the west of Kabul in central Afghanistan. The site is also the home to approximately 700 caves and was considered a major Buddhist center during the second to eighth centuries CE.30 A most unusual feature of the statues and one of particular note in the context of this article purports to have been that although the features were classically Eastern, the figures were draped in Greek robes. This has been interpreted to represent a fusion of the influences of East and West.31
The effect of Taliban rule on these very important cultural properties was first felt in September 1998. Initially, the spotlights that illuminated the statues were extinguished by the ruling group; however, within several days, the head of the smaller Buddha was demolished by explosive projectiles that were intentionally fired at
28 Yukiko Kishinami, Afghan Art in Safekeeping, YOMIURI SHIMBUN (Japan), Aug. 24, 2002, at 13.
29 Tom Squitieri, Afghanistan's Monumental Destruction, U.S.A. TODAY, Mar. 14, 2002, at 10D.
30 The UNESCO/Japan Funds in Trust, supra note 26.
31 Squitieri, supra note 29.
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the statue causing damage to both its robes, as well as frescoes that were located nearby.32
On February 26, 2001, Taliban leader Mulla Mohammed Omar issued an edict stating that all ancient monuments, including the Buddhas and other related cave carvings, must be destroyed. The objects were considered idolatrous by the Taliban and an offense to Islam.33 The destruction proceeded notwithstanding offers by institutions, such as the New York Metropolitan Museum of Art, to
purchase some of the property or pay for its removal and despite the appeals to the Taliban by representatives of Japan, Pakistan, Sri Lanka, Qatar, and India, as well as by UNESCO Goodwill Ambassador Ikuo Hirayama and a group of museum curators from such countries as the United States, the United Kingdom, and France. On March 3, a Taliban spokesman issued a statement that soldiers had used explosives to demolish the heads and legs of the giant statues the day before. Taliban Foreign Minister Wakil Ahmed Muttawakil noted that between March 5 and 7, demolition was suspended in observance of Eid al-Adha, a Muslim Festival; however, it resumed on March 8. As the cultural crisis continued, the UN Security Council attempted to intervene. On March 6, it issued a presidential statement condemning the edict, and on March 9, a unanimous resolution of the U.N. General Assembly was adopted that urged the Taliban to reconsider its actions. By March 8, Muttawaki deemed the decision to destroy the relics "irreversible," 34 and on March 27, Japanese media provided photographic evidence that the statues had been destroyed. 35
This Article will examine the role that has and is being played by Japan in responding to the challenges presented by the growing trade in stolen cultural property, art, and artifacts; consider the historical contexts in which Japan has been involved in the claimed misappropriation of cultural treasures, particularly those of Korea;
32 Id.
33 See, e.g., Kosaku Maeda, ASAHI NEWS SERVICE (Japan), May 23, 2003 (discussing the looting and theft of cultural artifacts in Afghanistan and the Middle East).
34 Afghanistan: Taliban Orders Destruction of Statues, FACTS ON FILE WORLD NEWS DIG., Mar. 26, 2001, at A2.
35 See UNESCO/Japan Funds in Trust, supra note 26 (stating that Mr. Koichiro Matsuura called the destruction a crime against culture); see also The Ministry of Foreign Affairs of Japan, Issues Relating to the Taliban's Edict to Destroy Statues, Mar. 21, 2001, http://www.mofa.go.jp/region/middle-e/afghanistan/ taliban0103.html (detailing the situation and response to the Taliban's edict to destroy cultural effects).
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analyze the legal conditions, structures, and developments in Japan, Korea, and other select countries relevant to the preservation and considered repatriation of cultural objects; and finally, compare the legal principles reflected in the mission to those that abide in the United States and that address similar policies and considerations.
2. THE PROTECTION OF CULTURAL PROPERTY: CONTEMPORARY INVOLVEMENT OF JAPAN
Japan itself has been deemed the victim of misappropriation of many of its cultural assets. 36 However, in the global marketplace of antiquities, the country has frequently been characterized as being a safe haven for stolen artifacts 37 from other locales. Much of this can be attributed to three factors: (1) Japan's perceived concentration of discretionary wealth and an assumption that the flow of illicit cultural assets is usually in the direction of locations where interested and capable buyers can be found; (2) its position as a long-standing and significant political and economic force in the world community; and perhaps most importantly, (3) the view that the country's laws and its treatment of bona fide purchaser are sympathetic to cleansing title to objects that possess questionable
provenance.
This unfortunate reputation has often served to precipitate an aggressive response from countries and citizens that have felt the loss of cultural objects and frequently exacerbates the already deplorable state of multinational affairs in the cultural property
36 See, e.g., Art Suspect Seen as Partof Network, YOMIURI SHIMBUN (Japan), Feb. 26, 2007, at 2 [hereinafter Art Suspect] (stating that as of October 2006, the Cultural Affairs Agency responsible for administering the 1950 Law for the Protection of Cultural Properties indicated that fifty-two pieces of art designated as cultural assets of national importance, including eight objects designated as national treasures, are missing in Japan). 37 See Global Effort Should Be Mounted for Recovery, ASAHI NEWS SERVICE (Japan), Apr. 22, 2003 (stating that Japan is a "significant market" for stolen artifacts); see also, Kosaku Maeda, supra note 33 (noting the revision on Japan's Civil Code) and discussed infra at Section 5.2.4.3.2 in which the two year statute of limitations for claims for the return of cultural property was, in 2002, extended to ten years; Donald Maclntyre, A Legacy Lost, TIME, Jan. 28, 2002, available at http://www.time.com/time/arts/article/0,8599,197704,00.html (discussing the return of important stone statues to Korea from Japan); Eiji Yamamori, Smuggler's Blues: Japan will Sign a Convention to Return Stolen, ASAHI NEWS SERVICE (japan), Nov. 22, 2002 (discussing Japan's previous lack of action and its reputation for harboring stolen objects); and Hisane Masaki, supranote 23 (indicating that many objects inside a Japanese museums may be smuggled cultural goods from other countries).
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community.38 For example, three Buddhist scriptures that had been designated as important cultural assets of Japan, including one entitled Dai Hannya Kyo, along with 493 written copies, were stolen from Ankokuji Temple in Nagasaki on July 23, 1994. The objects surfaced in Korea in 1998. However, upon asking the Korean government for assistance in repatriating the items, Japan was informed that the scripture had been designated a Korean National Treasure in 1995, and since the last owner had been a bona fide purchaser, the item would not be returned.39 In addition, the Korean statute of limitations apposite to the claim of recovery expired on July 22, 2001.40
In what is claimed by Japanese officials to be related events, a number of tenth to fourteenth century Korean Buddhist paintings were stolen in 2005 and 2006 from temples located in Aichi and Fukui Prefectures, Japan. Kim Jae Chil, a 48-year-old Korean man, is currently on trial in Japan for the thefts. In addition, Kim is accused of attempting to arrange for the ransom of another Korean Buddhist painting in 2005, also a designated important cultural asset of Japan, that had been stolen from Kakurinji Temple in Hyogo Prefecture in July 2002.41 While Kim alone is being formally charged in the thefts, he is suspected of being only a part of a broader network of persons dealing in stolen artifacts.
Consistent with the notion of a syndicate being involved in the international theft of cultural property, the prosecutor's office in Seoul has been assembling a case against two brothers and an acquaintance, who are thought to have conspired to break into temples in Osaka and Aichi Prefectures in Japan. Prosecutors believe that the group has stolen a total of forty-seven cultural objects valued at approximately 300 million yen from temples in
38 The theft of cultural property is not, however, only an international problem. Japan is also a frequent victim of thefts. For example, in January 2003, Japan's oldest Hinomaru (Rising Sun) flag (a designated important cultural property) was stolen along with fifty other priceless works of art from the Imperial Palace (Hori Family home) in Nishiyoshino (Anou) Nara Prefecture. The flag was thought to have been used during the Nambokucho Period (1336-1392) by the army of Emperor Go-Daigo. 14th Century Rising Sun Flag Snaffled in Historic Raid, MAINICHI DAILY NEWS (Japan), Jan. 19, 2003.
39 Art Suspect, supranote 36.
40 See, e.g., Japan: Investigation into Stolen Scriptures Expires, KYODO NEWS SERVICE, July 22, 2001 (stating that the statute of limitations on the 1994 theft expires July 22, 2001).
41 See Art Suspect, supranote 36 (reporting that Kim Jae Chil is being charged in connection with the theft).
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these Japanese prefectures. The group is also suspected of having ties to Kim Jae Chil, as well as being instrumental in the burglary of the Kakurinji Temple in July 2002, during which eight Buddhist works of art were taken, including a hanging scroll of the Amida Triad dating to Korea's Goryeo period (918-1392).42
In April 2003, the Hyogo Prefectural Police arrested the younger of the two brothers under investigation in Seoul and seized seven of the purloined items. These articles were returned to the temple; however, the scroll of the Amida triad was not recovered. Further investigation has disclosed that the scroll was illicitly taken to South Korea, where it sold to a dealer for 110 million won (110.5 million yen, approximately 106,000 USD), later resold to a South Korean businessman for 400 million won, and eventually donated to a temple in Daegu.43 Representatives of Kakurinji Temple travelled to Seoul in November of 2004 to request the prosecutor's assistance in repatriation of the scroll; however, notwithstanding the claims of the temple, it is unlikely that they will meet with any success in Korea. Article 249 of the Korean Civil Code would award actual legal title to the scroll to the last bona fide purchaser, 44 who in this case, presumably is the businessman from South Korea.
Of considerable contextual note, and perhaps of greater social import, are the comments made by the thieves when apprehended and the significant divergence of public opinion with respect to the proper disposition of the case. One of the suspects stated that, having read that many Buddhist objects from the Goryeo Period (918-1392) had been illegally removed to Japan by the invasion of Hideyoshi, his and his colleagues' motive in taking the objects was
42 See Hisane Masaki, Janus-faced Japan:Is the Country a Cultural 'Guardian' or 'Looter'?, OHMYNEWS, Aug. 17, 2006, http://english.ohmynews.com/articleview/ articleview.asp?menu=c10400&no=311744&rel-no=1 [hereinafter Janus-faced
Japan] (explaining that there may be approximately 130 paintings of the Amida Buddha from the Goryeo Period-of this number, thirteen are located in South Korea, and it is suspected that 106 are in Japanese temples).
43 Stolen Art: Who is the Rightful Owner of Works Looted Centuries, AsAHI SHIMBUN (Japan), Dec. 2, 2004 [hereinafter Stolen Art] (detailing the journey and possible destinations of the stolen scroll).
44 Lee Sun-young, Stolen Treasure Returned Home, KOREA HERALD, Nov. 9,
2004, available at http://www.buddhistchannel.tv/index.php?id=4,139,0,0,1,0 (quoting experts and prosecutors: "[I]t is unlikely that the painting will be returned to Japan since none of the last few owners appear to have been aware they were buying something that was stolen" and that the artifact should remain in Korea).
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to take cultural artifacts looted by Japan back to their country. 45 As
a consequence, the members of the group are, reportedly, widely
held in Korea as patriots who have corrected a centuries-old wrong
committed by Japanese invaders. 46 Temple officials, however, are
said to be dismayed by this attitude and view those under
investigation as simply greedy thieves with a galling lack of
respect for institutions set up to spread good will.47
3. WHO IS THE RIGHTFUL OWNER OF CULTURAL PROPERTY? THE POLITICAL CONTEXT IN THE EAST
To properly analyze assertions of misappropriation, it is
necessary to focus on several seminal considerations. These
include the means by which the property came to be reposed in the
country having actual possession of the object, the subject matter
that is deemed to be cultural property, the social and
anthropological characteristics of the claimant, and the political,
philosophical, and moral context of the claim.
Perhaps the great majority of the claims that have arisen concerning the alleged misappropriation of property by Japan have been made by Korea and China.48 In this context, there are a number of usual means by which cultural articles from these and other countries have allegedly come to be present in Japan. 49 They include:
45 Id.; see also Janus-faced Japan, supra note 42 (stating that the "Koreans insisted they were on a mission to reclaim pieces of Korean history" that the
Japanese stole). 46 Janus-facedJapan,supra note 42. 47 Id. Evidence exists that, in fact, the temple that had preceded Kakurinji
had been founded by a priest who had come from Korea during the Goguryeo Period and that the Arnida scroll, in particular, was in the possession of the temple approximately 100 years prior to the Japanese invasion. Stolen Art, supra note 43.
48 See, e.g., Treasure Hunt, BEIJING REV. 2005, available at www.bjreview.cn/EN/06-25-e/china-4.htm (discussing the occurrence of overseas treasure hunting by Chinese collectors in Japan); Ma Guihua, Return of Lost Relics a Must, CHINA DAILY, Jan. 31, 2003 (stating that China has lost many cultural artifacts to Japan); and Consulate General of the People's Republic of China, Cultural Relics on Their Way Home, Nov. 19, 2003, available at http://houston.china-consulate.org/eng/nv/t52847.htm (stating that some relics are finding their way to Chinese museums).
49 Suvendrini Kakuchi, Many Korean Works ofArt Looted by Japan Still Missing, INTER PRESS SERVICE, Dec. 28, 2005 ("Surveys...show that while many of the items were looted, there were others that were also bought by Japanese through proper
channels or excavated during colonization, which makes it difficult to demand their return.").
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(1)
Personnel affiliated with Japanese forces appropriated the objects in the course of armed conflict and either brought the objects with them upon their return home or forwarded them to persons in Japan, often the emperor or another influential individual, as a symbol of Japanese faith and dominance.
(2)
Individuals brought indigenous objects with them when they immigrated to Japan.
(3)
Business persons or visitors purchased objects on the open market and in the ordinary course of commercial trade from or when they were in a foreign location, and either had the articles sent to Japan or brought the objects with them upon their return to the country.
(4)
Cultural objects were given or sent as a gesture of international goodwill to diplomats, ambassadors, government officials, business persons or others by those who were, in the locale from which they were exported, perceived domestically as the rightful owners of the objects.5 0
(5)
Cultural objects were illegally or illicitly taken from the rightful possessors or owners and taken or sent to Japan.
(6)
Objects were excavated during periods of colonization or political occupation, often by academic institutions or other cultural research groups, and exported to Japan; or
(7)
Cultural objects were exported, perhaps improperly on some occasions, from a country either by those who were deemed the rightful owners/possessors of the objects or by others who had misappropriated the objects, and the articles found their way to Japan.
A second factor, however, is the often disparate, imprecise, and diverse way in which cultural property is defined within the countries, as well as through the various national and international documents that address this issue. This is often a significant impediment to definitively assessing the legitimacy of the avenue of acquisition. For example, the range of items that Korea claims to have been misappropriated by Japan is extremely broad. While some include such late sixteenth century acquisitions as the Korean
50 An interesting example of this symbolic and ceremonial tradition was the gift from Japanese Ambassador So Yoshitomo to the Korean ambassador of a gun to convey the threatening message that should Korea fail to cooperate with the ambitions of Toyotomi Hideyoshi, force would be used. See, e.g., infra note 83 and accompanying text; see generally, STEPHEN TURNBULL, SAMURAI INVASION 34-35, app. 3 at 241 (2002) (describing the ceremonial exchange of gifts and listing the "heads of Namw6n").
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stone lantern brought to Japan by Kuroda Nagamasa, which
currently stands in the Daitokuji Temple in Kyoto, and a stone
from the Namdaemun Gate of Seoul that was acquired by
Hosokawa Tadaoki and is now used as a garden feature, others,
more macabre, include 100,000 noses and ears sliced off of Koreans
by Japanese Samurai during the Imjin War of the late sixteenth
century, which are buried in the Mimizuka mound in Kyoto.51
Third, the problem of repatriation is often exacerbated by
transcultural, multi-community, and esoteric considerations such
as whom in fact or in law is to be considered the rightful owner of
cultural property; and the resolution of this issue is particularly
51 Id. See, e.g., Barbara Demick, Pilfered Monument Back in Korea, a Century Later, L.A. TIMES, Mar. 13, 2006, at A3 (stating that the Bukgwan Victory Monument was finally returned to South Korea from Japan); TURNBULL, supranote 50 (citing Chosen ki in 1933 ZOKU GUNSHO RUIJu KANSEIKAI 287-88 [hereinafter ZGR] which states that documentation of the taking of heads, ears, and noses as a show of accomplishment in battle was very important); see also TURNBULL, supra note 50, at 230 (stating that Okochi Hidemoto, a warrior during the Imjin War, reported in his balance sheet that 160,000 Japanese troops had gone to Korea during the War and 185,738 Korean and 29,014 Chinese heads had been taken); Motoyama Buzen no kami Yasumasa oyako senko oboegaki, 1933 ZGR 391 as cited in TURNBULL, supra note 50, at 250 (quoting Motoyama Yasuma stated: "Men and Women, down to newborn infants, all were wiped out, none was left alive. Their noses were sliced off and pickled in salt."). Japan is also currently confronting domestic issues similar to concerns expressed in the United States with respect to the treatment of indigenous peoples. In the United States it was found that museums, including the Smithsonian, were in possession of human remains of Native Americans that had been gathered for anthropological study. The return and protection of such
remains in the U.S. was the subject of The Native American Graves Protection and Repatriation Act (NAGPRA). In Japan, remains of an indigenous group known as the Ainu along with associated funerary objects were the subject of similar collection and study. While many academic institutions and museums contain such remains and objects, perhaps one of the largest was reposed at Hokkaido University. The collection, assembled in the 1930's by then-Professor of Anatomy Sakuzaemon Kodama, contained over 1,004 Ainu skulls and other skeletal remains. Negotiation between Hokkaido University and the Ainu Association of
Hokkaido (AAH) were commenced in 1987 concerning the custody and repatriation of the remains. As of 2002, thirty-five remains have been repatriated, and according to the university, the remaining 969 remains are available for reclamation by proper representatives. The issue of the location of 7,000 related funerary objects is still being addressed. It is believed that most were in the collection of Kodama, and upon his death they either passed to the Hakodate City Museum, the Ainu Museum in Shiraoi, or into the private hands of descendants of Kodama. Some rumors persist that the objects are in a secret collection at the university. The AAH continues to press the cause and has, in fact, issued a request to institutions in Europe and the United States for return of Ainu remains it believes are reposed in those countries. See, e.g., Tomek Bogdanowicz, Skeletons in the Academic Closet, JAPAN TIMES, Nov. 17, 2002 (discussing Professor Kodama's collection of Ainu skulls).
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difficult if no identifiable living individual has actually suffered its direct personal loss. In such circumstances the issue of representation arises, and in that context the question might be, who is to be considered the proper person or group to succeed to the interest?5 2 Is it a descendant of the individual or group from which the object was derived, or when neither the creator nor lineal representative is clearly identifiable, might it be that person or group who can best be considered the "cultural heir" of the peoples who created the item?
In comparing the available international agreements, there is no single directive as to whom, precisely, errant property is to be repatriated, and the relevant documents can in general be grossly divided into two groups that represent varying perspectives. The first, including the UNESCO Convention on Illicit Art and International Institute for the Unification of Private Law ("UNIDROIT") present a bias favoring a conclusion that cultural property is part of, and necessarily attached to, a particular location or group. To the contrary, the second group represented by The Hague Convention, the UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage, and certain of Japan's recent enactments take a significantly different and more general view that culture and its proprietary by-products are to be considered the common heritage of mankind.
In the context of the Japanese-Korean disputes in this area, the issue takes on an unusual caste as a result of what has been considered a rather unusual anthropological view propounded by Japan as to the monoethnic 53 relationship between the Japanese and Korean peoples. To begin, Japan espouses a general precept that, with the exceptions of the Ainu of Hokkaido 54 and the
52 This is a very significant issue in the context of claims by Korea and China for the return of cultural properties from Japan, as part of Japan's anthropological and political perspective during its colonization of the Korean Peninsula was that it was merely occupying lands to which it was the rightful racial/ethnic descendent. See infra note 62 and accompanying text. 53 See Stephen Murphy-Shigematsu, Multiethnic Japan and the Monoethnic Myth, 18 MELUS 63, 66 (1993) (detailing assimilation policies favored by Japanese political leaders who believed Japan should be a monoethnic society (tan'itsu minzoku kokka)). 54 See, e.g., David L. Howell, Ainu Ethnicity and the Boundaries of the Modern Japanese State, 1994 PAST & PRESENT 69 (using changes in the ethnic identity of Ainu during the Tokugawa period, 1600-1860, to illustrate how Japanese homogeneity is a product of history).
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Ryukyuans of Okinawa and other Ryukyu islands,55 its population is biologically and culturally homogenous.
The evidence as to the origin of the Japanese people is, however, conflicting and in many ways confusing. The archaeological information5 6 seems to suggest four possibilities. They include:
(1)
That the Japanese evolved from ice-age inhabitants who migrated over land bridges that connected the islands with the mainland prior to 20,000 BCE;
(2)
That they are descended from non-Korean Asian nomads who passed through the Korean Peninsula to conquer Japan in the fourth century BCE;
(3)
That they are descended from Korean immigrants who arrived in the islands around 400 BCE and who brought with them the agricultural techniques for cultivating rice; and
(4)
That the modern Japanese are a mixture of the aforementioned groups. 57
What does appear particularly credible, however, is that Japan has suffered invasion by outsiders only twice in its long history, once by Korea or Korean-related persons in the third to fourth century BCE and once by the United States in 1945.58
In light of this information, who then is the rightful heir of the lands and culture of Japan and Korea? Confronted with the evidence of anthropological origin5 9 and with the fact that people
55 Murphy-Shigematsu, supranote 53.
56 See Jared Diamond, Japanese Roots, 19 DISCOVER MAG. (June 1998), available at http://discovermagazine.com/1998/jun/japaneseroots1455/ ?searchterm= japanese%20roots (explaining and analyzing the anthropological issue and consequences of the attempt to link Japanese racial and political origins to China and Manchuria through use of these artifacts).
57 Id.
58 See, e.g., Diamond supra note 56. See generally Richard Hooker, Ancient Japan, http://www.wsu.edu/-dee/ANCJAPAN/ANCJAPAN.HTM (last visited Mar. 4, 2008) (providing a comprehensive learning module, paying particular attention to interactions between Japanese and other cultures in the ancient period).
59 Discussing the anthropological origin of the Japanese people, Nobayashi states:
The purpose of physical anthropology is to investigate the morphology
and physiological phenomena of human beings, to know the variations
of them among each group and then to discuss the process of changing of
human beings or each population in the past present and future.
Physical anthropology in Japan has progressed in line with this purpose
and pursued a concrete issue. It is the origin of the Japanese race. When
they refer to themselves, Japanese use various terms: Nihon-jin (the
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and material culture passed between the Korean peninsula and the Japanese islands at various times, including during both the period of 300 -700 CE and during the Imjin War in the last decade of the sixteenth century, Japan's interpretation was that it conquered Korea and brought the influence of that peninsula to the islands of Japan.60 To the contrary, however, historical perspective seems to be that Korea conquered Japan and that the Japanese Imperial Family is, in fact, of Korean descent. 61 The ultimate political and cultural significance of the debate in this case rests, however, in the position of Japan that when it annexed the Korean peninsula in 1910, the event was celebrated as "the restoration of the legitimate arrangement of antiquity." 62 Thus, Japan considered itself the heir to all that had theretofore been improperly considered within the province of their unfortunate and undeveloped kinfolk of the mainland. To the contrary, however, some have viewed Japan's interpretation as less than sincere and a mere rationalization. As stated by one Korean author, Hyung I1Pai:
During the colonial period, Korean remains and relics were
promoted by Japanese bureaucrats, intellectuals and
people of Japan), Nihon-minzoku (the minzoku of Nihon), Wa-jin (the
people of Wa), Yamato-minzoku (the minzoku of Yamato), etc. All these
terms seem to include the nuance of the Japanese as a homogenous race.
Atsushi Nobayashi, PhysicalAnthropology in Wartime Japan, in WARTIME JAPANESE ANTHROPOLOGY IN ASIA AND THE PACIFIC 143 (Akitoshi Shimizu & Jan van Bremen eds., 2003).
60 Analyzing Japan's military policy, Murphy-Shigematsu states:
Present-day leaders, most notably former Prime Minister Nakasone,
continue to endorse the theory that a strong and dominant Japan is
generated from a clear identity as a monoethnic people with a special
spirituality and culture. Nakasone's intellectual mentor was the
nationalist philosopher Watsuji Tetsuro, who believed that Japan's
military aggression was part of a destiny imposed upon the nation, much
like nineteenth-century "manifest destiny" philosophy of the United
States ....
Murphy-Shigematsu, supra note 53, at 65. See alsoKirsten Refsing, In Japan,But Not of Japan, in ETHNICITY IN ASIA 48 (Colin Mackerras ed., 2003) (describing different groups that "are in, but not of,Japanese society").
61 See Diamond, supranote 56 (discussing various theories of the origin of the Japanese).
62 Id. See also Howell, supra note 54, at 69 ("Japanese homogeneity is very much a product of history, a political construct that emerged during the process of state formation and re-formation in the Tokugawa (1600-1868) and Meiji (1868-1912) periods."); id. at 92 (describing the state's assertion of sovereignty consistent with Western standards of international law over both Hokkaido and Ryukyu during the Meiji period and its redefinition of the populations as ethnic Japanese).
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educators as the most crucial "scientific" and "historical" evidence for linking Japan's racial and state origins to the Chinese continent and Manchuria. In this way, archaeological and art-historical data were used to demarcate "Japanese" homelands, thus supporting the then-popular racial hypothesis which traced the common ancestral origins of the Korean/Japanese races (Nissen dosoron) in Manchuria. This racial theory provided the intellectual justification for Japanese empire-building in northeast Asia at the turn of the century. Consequently, in the post-war period, Japanese archaeologists have been vilified not only for their "imperialistically" biased interpretations of the Korean past but for using their archaeological knowledge systematically to loot the Korean peninsula. 63
Consistent with Japan's policies, however, and notwithstanding the formal language of annexation in treaty documents, Korea was not viewed by Japan as a possession nor was it, within the Japanese psyche, internally perceived as a colony; rather, it was a mere legitimate geographic extension of the Japanese state. Representing and reinforcing this pervading ideology, Japan adopted a policy of assimilation 64 upon taking
63 Hyung II Pai, Nationalism and Preserving Korea's Buried Past: The Office of Cultural Properties and Archaeological Heritage Management in South Korea, 73 ANTIQUrrY 619, 619 n.1 (1999). 64 Discussing Japan's policy of assimilation:
Physical anthropologists continued to pursue (sic) the origin of the Japanese race. The interest of physical anthropology, however, was also a very important issue to governing colonial areas. When Japan governed its colonial areas, especially under the kominka Uapanization) policy in the 1930s and 1940s, it needed the proper means for governing others. It was true that the model of the formation of the Japanese race, which physical anthropology had formulated, supported formation of colonial ideology for governing colonial areas.
Shiro Sasaki, Anthropological Studies of the Indigenous Peoples in Sakhalin in Pre-Wartime and Wartime Japan, in WARTIME JAPANESE ANTHROPOLOGY IN ASIA AND THE PACIFIC, supranote 60, at 151.
Many conclude that Japan is multiethnic; however, others, including the prominent writer Akiba Takashi, believe that the Koreans are much more closely related to the Japanese than any other group. This view was employed to support the colonial ideology of assimilation. "Akiba gave a particular twist to the idea of Japanese-Korean integration. He rejected narrow nationalism (minzokushugi) and distinguished between race (jinshu) and people or nation (minzuko). A nation does not have to consist of a racially homogenous group." Boudewijn Walraven, The
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over the seat of power on the Korean peninsula. As part of that program, it encouraged the intermarriage of Japanese and Koreans, constricted the use of the Korean language and promoted the use of Japanese, passed laws requiring Koreans to take Japanese names, and generally suppressed distraction or dissent directed against Japanese policies. 65 As a complement to this program and to better understand the Korean people, much attention was given by the Japanese to the study and documentation of Korean folklore and folkways, 66 customs, ceramics, and other forms of cultural property.67 As a corollary, the view of Japan as well as much of the greater international community at that time was that Korea was in great need of the guidance and cultivating hand of Japan. Even Koreans seemed to have accepted this view, at least with respect to the goals of industrialization and modernization. 68
Thus, and to the extent that this perspective has any purchase, either politically or anthropologically, the determination of the rightful heir of much cultural property in Asia has proven to be very difficult to resolve.
Finally, due to the complexity of the considerations and the relative dearth of available and effective principles for settling these kinds of disputes, it is not unusual in this context for claims of current entitlement to be founded upon situational moral or serendipitous contemporary social or political biases rather than
Natives Next-door: Ethnology in Colonial Korea, in ANTHROPOLOGY AND COLONIALISM IN ASIA AND OCEANA 228 (Jan van Bremen & Akitoshi Shimizu eds., 1999). 65 See generally RICHARD KIM, LOST NAMES: SCENES FROM A BOYHOOD IN
JAPANESE-OCCUPIED KOREA (1988) (describing the plight of families during the Japanese occupation); Diamond, supranote 56.
66 It was important for the Japanese to study Korean folklore:
In the midst of indiscriminate oppression and censorship toward the end of the colonial period, it became indeed much more difficult to deal with politically sensitive issues. It is perhaps due to this repressive political atmosphere that we find increasing emphasis on history in the folklore studies of this period. For instance, if specific folklore items were studied as elements to explain a more holistic concept of culture, national character, or "mind" in the earlier studies, the main focus was now placed upon their origins, history and typology without much consideration for the social and political contexts in which they were practiced.
Okpyo Moon, Korean Anthropology, A Search for New Paradigms, in ASIAN ANTHROPOLOGY 120 (Jan van Bremen, Eyal Ben-Ari & Syed Farid Alatas, eds. 2005). See generally Walraven, supranote 64.
67 See infra note 158 (describing the creation of agencies to study and document Korean cultural objects). 68 Walraven, supranote 64.
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upon substantive legal principles. Often party claimants elect to overlook the extant historical political realities when the object in question was appropriated and rely instead upon highly charged and emotional appeals. Consequently, when legal arguments have been exhausted, claimants will often resort to highly charged and emotional appeals and will call upon more abstract, philosophical premises such as fairness or justice. For example, as stated by You Hong-June of South Korea's Cultural Heritage Administration:
We believe there are over 100,000 items still in Japan. Under international law, the Japanese [government has] no responsibility for items in the hands of ordinary citizens, but we believe there is a moral responsibility [to return the objects to Korea]. 69
As a result, the determination of actual "ownership" of cultural assets is often a difficult, if not impossible, task. Such is part of the challenge facing countries like Japan. Let us now turn our attention to the concerns of Korea.
4. THE JAPANESE-KOREAN CONFLICT
There are two predominant periods during which it is believed that significant numbers of important cultural properties of Korea found their way to Japan. The first was during the several invasions of the Korean peninsula by Japan at the end of the sixteenth century; the second commenced during the late nineteenth century and continued until the conclusion of the period of colonization of Korea by Japan in 1945.70 In order to
69 Demick, supranote 51. The number of objects claimed to be in Japan varies
greatly. See Lee Sun-young, supra note 44 (explaining that in 2004 the Korean
Heritage Administration claimed that more than 34,000 objects remained in Japan).
70 Individuals in Japan support their possession by drawing an analogy to the historical position of Western countries such as Great Britain. As stated by Teikan Kimura, Head Priest of Rinshoji Temple in Toyota, Aichi Prefecture, "The British Museum also owns artworks taken from former colonies .... Will those countries also ask that all the art be returned? I hope they (South Koreans) understand that we have taken great care of these works for centuries." Stolen Art, supra note 43. It is also posited that French and British museums are filled with booty collected from numerous countries including Japan, China and Korea. For a good review of the collection activities of the British Museum, see KIM SLOAN, ENLIGHTENMENT: DISCOVERING THE WORLD IN THE EIGHTEENTH CENTURY (2003). Consistent with these collection policies, Japanese assert that in many cases they merely rediscovered and preserved ancient artifacts which Koreans had long forgotten. As noted by Professor of Art Fusatoshi Fujikawa of Keizai University, "The
2008] SPOLIATION, CULTURAL PROPERTY,AND JAPAN 825
truly understand Korea's position with respect to its assertions of the spoliation of cultural property, it is necessary to have, at the least, a general acquaintance with the events of the relevant periods.
4.1. JapaneseInvasionsof Korea -1592-1598
For 10,000 li the waving battle-flags darken the sky. With a great roar the cries of the soldiers seem to lift heaven and earth.
Higher than mountains, the bones pile up in the fields. Vast cities, great towns become the burrows of wolves and foxes. 71
South Korean Cultural Properties Administration officials have claimed that many works72 from the Goryeo Period 73 were brought
Koreans keep accusing Japan of stealing but the Japanese think they did something good. They think they should be thanked." Kakuchi, supra note 49. This argument is fully consistent with many proffered by the British Museum with respect to the Parthenon Marbles, and it should be noted that similar arguments were articulated in the nineteenth century as British Parliament debated the purchase of the marbles from Lord Elgin. See Frank Herrmann, Lord Elgin's Rescue of the Sculpturesfrom the Parthenon, in THE ENGLISH AS COLLECTORS 154 (Frank Herrmann ed., 1972) (describing Lord Elgin's art discoveries in the Parthenon). See also Sir Henry Ellis, THE ELGIN AND PHIGALEIAN MARBLES 156 (1846) (depicting Lord Elgin's findings).
71 PAK NO-GYE, SONG OF GREAT PEACE (1598) available at http://koreanhistoryproject.org/Ket/C12/E1205.htm.
72 The Goryeo Dynasty is best known for its fine celadon pottery, carved Buddhist scriptures known as Tripitaka Koreana, and the invention by Chwe Yun-yi in Korea of the first metal based moveable type printing in approximately 1234. The Jikji, claimed to be the oldest moveable metal print book, was produced in Korea in approximately 1377. See generally KI-BAIK LEE, A NEW HISTORY OF KOREA (Edward W. Wagner & Edward J. Shultz trans., 1984); KEITH PRATr, EVERLASTING FLOWER, A HISTORY OF KOREA (2006); ROGER TENNANT, A HISTORY OF KOREA (1996); KOREAN HISTORY: DISCOVERY OF ITS CHARACTERISTICS AND DEVELOPMENTS (Korean National Commission for UNESCO ed., 2004).
73 The Goryeo Period is also referred to, at times, as the Koryeo Dynasty.
Goguryeo, Baekje, and Silla, commonly known as the Three Kingdoms of Korea, occupied the Korean peninsula and portions of northeastern China from approximately the first century BCE until the year 668 CE. In 668, following the defeat of Goguryeo by Silla, a unified Silla emerged. Eventually, unified Silla weakened and two new kingdoms, Taebong (Hu-goguryeo) and Baekje (Hubaekje), were created by two rebel leaders, Gung Ye and Gyeon Hwon, respectively. Wanggeon, a lord of Songak (currently Gaesong), initially joined the
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back to Japan by those who accompanied Toyotomi Hideyoshi on the invasion of the Korean 74 Peninsula. 75 This incursion, actually a composite of two separate insurgencies, took place during the Joseon Dynasty 76 and has generally come to be known as the Seven Year War.
Following the establishment of the Kingdom of Great Joseon there was little internal civil unrest on the Korean Peninsula except for raids by the Jurchens, 77 a nomadic tribe from the northern border. In addition, while occasional armed conflicts erupted with Japan and other neighboring countries, certain moderating considerations provided general stability within the area. So, for example, while Korea and China had experienced a long history of
Kingdom of Taebong, but in 918 he overthrew its founder, Gung Ye, and established Goryeo. In 935 the Kingdom of Goryeo annexed Silla and defeated Hubaekje, and the Goryeo Dynasty was formally born. See PRATT, supra note 72 at 59-84.
74 The English name "Korea" is derived from the name of the Goryeo Dynasty.
75 See Stolen Art, supra note 42 ("South Korean Cultural Properties Administration officials believe that Japan has many works from the Goryeo Period-either brought back by looters who accompanied Toyotomi Hideyoshi on his first attempted invasion of the Korean Peninsula in 1592 or brought to Japan by Koreans.").
76 Following a coup d'etat by General Yi Seonggye of the Jeonju clan, the Joseon Dynasty was formed in 1392 in the city of Gaegyeong (contemporary Gaeseong). Also, at times, referenced as the Choson or Yi Dynasty, the Joseon Dynasty lasted for over five centuries and ended with the Japanese annexation of Korea in 1910. In 1393, the capital was relocated to Hanseong (contemporary Seoul) and the Kingdom of Great Joseon was officially formed and Monarch Seonggye (King Taeio) assumed the throne. The kingdom's geographic boundaries expanded northward to the Yalu and Tumen rivers and incorporated the territory governed by the Jurchens, a tribe that inhabited Manchuria and what is now northern Korea. See generally LEE, supra note 72; PRATr, supra note 72; TENNANT, supranote 72; KOREAN HISTORY, supra note 72.
77 In 1586, the nomadic tribes of Manchuria were united by Nurhaci, a leader of the Jianzhou Jurchens, one of the three subgroups of Jurchens, and in 1616, the Jin Dynasty (to become known as the Manchu State) was established in that
region. In 1618, Nurhaci issued a script known as The Seven Grievances against the Ming Dynasty of China, and armed conflict ensued. In 1635, the Manchu prevailed over the combined forces of the Ming Chinese, the Koreans, and Yehes, and the Ming Dynasty was vanquished. In 1636, Nurhaci's son reorganized the Manchus and the Mongolian, Korean, and Chinese affiliates into a new resulting political unit called Qing and named the national group "The Manchu." See generally Pei Huang, New Light on the Origins of the Manchus, 50 HARV. J. ASIATIC STUD. 239 (1990) (explicating the ancestry of the Manchus). The Qing Empire ruled China until 1912, at which time it was replaced, through the Xinhai Revolution, by the Republic of China. See generally sources cited supranote 72.
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mutual aggression, 78 they also shared common interests in the traditions of Confucianism, in national defense against the Jurchens and the Woukou, and in commerce. Consequently, positive diplomatic relations between Korea and the Ming Dynasty of China developed. The same was also generally true of Japanese-Korean relations. Although often engaged in political disagreement with countries of the region, 79 Japan also shared an interest in a positive commercial environment, and as a result, it established and maintained viable and formal trade relations with Korea.
The use of armed conflict was a convenient and usual device for the settlement of a myriad of disputes of the day, and although historians tend to classify aggression along convenient geopolitical lines, it was frequent that the faces of the forces were often of combined nationality. Furthermore, it was not unusual for countries to cooperate with one another to confront the threat of mercenaries. So, for example, the Asiatic region was, in the 15th and 16th centuries, troubled by raids of stateless groups that came to be known as Woukou. Although literally translated as "Japanese pirates," the gangs were, in fact, often composed of Chinese soldiers and merchants, Japanese ronin80 and merchants,
78 In 1231, the Mongols invaded Korea and following nearly three decades of discord, Korea relented. In 1258, Korea signed a peace treaty with the Mongolian Yuan Dynasty. Kublai Khan became the Emperor of China in 1260 and the capital was established at Beijing in 1264. During the aggression of 1232, the original Tripitaka Koreana, a collection of Buddhist scriptures, was destroyed; however, it was ordered to be recreated in 1236. The carving of the approximately 80,000 wood blocks took about fifteen years to complete. See generally KI-BAIK LEE, supra note 72. See also U.N. Educational, Scientific, and Cultural Organization ("UNESCO"), World Heritage, Haesina Temple Janggyeong Panjeon, available at
http://whc.unesco.org/pg.cfm?cid=31&idsite=737 (describing the Haeinsa
Temple Janggyeong Panjeon, the Depositories for the Tripitaka Koreana
Woodblocks).
79 Japan had to defend itself from the invasions of its ambitious neighbors on numerous occasions. For example, in 1274, a Mongolian fleet, peopled by approximately 15,000 Mongol and Chinese soldiers and an estimated 8,000 Korean warriors, attacked and captured the Japanese islands of Tsushima and Iki. The fleet then proceeded to Hakata Bay near Dazaifu, the then capital of Kyushu, Japan. After suffering heavy casualties and the complications of weather, it was repulsed by Japanese forces. The conflict continued until 1281 at which time the Japanese routed the invaders. See GEORGE SANSOM, A HISTORY OF JAPAN TO 1334 at 442-44 (1958).
80 Ronin, literally translated as "wave man," were a class of roving samurai who were not officially attached to a particular daimyo or master. They were often viewed as disreputable rogues. G.B. SANSOM, JAPAN: A SHORT CULTURAL HISTORY 201, 356, 496 (1962) [hereinafter SANSOM, SHORT CULTURAL HISTORY]; GEORGE
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Korean sailors and Portuguese seafarers, traders, and missionaries. 81 The cadre frequently sailed from the Japanese islands of Tsushima and Iki, and their sorties often penetrated deep into Korea. 82 At the request of the Goryeo King, the Muromachi Shogunate of Japan attempted to suppress the pirates. Unfortunately, it met with little success, and in 1389 and 1419, Korea unilaterally invaded the island of Tsushima.8 3
The effects of the Woukou raids were also felt in mainland China, and although the group retained their nominal Japanese attribution, it is believed that by the mid-16th century, the majority were, in fact, Chinese. Between 1523 and 1588, the level of violence at the hands of the pirates escalated, and approximately 66 raids were made on China by the Woukou. In 1585, through might of hand, the famous (or infamous) Toyotomi Hideyoshi rose to become the Kanpaku, i.e., the Regent of Japan. 84 He agreed to collaborate with the Ming Dynasty to address the Woukou threat, 85 and with the help of the Japanese, the raiding was eventually reduced. The union was to have a profound effect on the future of Japanese-Korean relations. Two Japanese regulations are said to have contributed significantly not only to suppressing the Woukou but also to stabilizing the political environment in Japan. The first,
SANSOM, A HISTORY OF JAPAN 1334-1615 at 332, 398 (1961) [hereinafter SANSOM, JAPAN 1334-1615]. 81 See generally TURNBULL, supranote 50, at 26-30.
82 The decline of the Goryeo Dynasty has been attributed, in part, to the effects of the Woukou raids. The events also provided a vehicle through which General Yi Seonggye, the founder of the Joseon Dynasty, was able to rise to prominence. See id. The Woukou were also known as Wak6 (pirates) in Japanese. See SANSOM, JAPAN 1334-1615, supra note 80, at 177-180, 266-70 (describing the Wak6).
83 Joseon officials had asked the Ashikaga Shogunate and its deputy in Kyushu to suppress the pirate attacks. However, little positive response was forthcoming. Pirates from Tsushima invaded Ming China in 1419, and on their way, they raided the provinces of Chungcheong and Hwanghae in Korea. Former King Taejong, still a military advisor, ultimately declared war on Tsushima in June of 1419, stating that the island belonged to the Gyeongsang Province of Korea. The ruling clan in Tsushima surrendered in September 1419, and a treaty was negotiated. See generally sources cited supranote 72. 84 In fact, in 1591, Hideyoshi resigned from this post and assumed the position of Taiko, which would permit him to lead his armed forces in battle. He appointed his nephew, Hidetsugu, as his successor. See TURNBULL, supranote 50, at 232. 85 See WILLIAM CARAWAY, KOREA IN THE EYE OF THE TIGER, ch. 12,
http://koreanhistoryproject.org/Ket/TOCl.htm (detailing the military activities of Toyotomi Hideyoshi).
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issued in 1588 and popularly referenced as the Sword Hunt, abolished sword ownership by Japanese peasants.8 6 It also effected a formal division between those involved in agricultural activities from those who were members of the developing professional armies. The second, known as the Separation Edict of 1591, permitted daimyo to secure written oaths from those who desired to be sailors and further distinguished between the classes of laborer and samurai. This latter law also provided that should a daimyo fail to secure the oath of the seafarer not to engage in piracy, the fief of the daimyo was open to forfeiture.
During the resulting period of forced political stability in Japan, Hideyoshi's 87 ambitions were cultivated, and he was eventually moved to send ambassadors to the court of Joseon Dynasty to request permission for Japanese troops to pass, unimpeded, through the Korean peninsula on their way to China.
The conqueror of Japan did not simply rest on his laurels. Instead, he fell prey to the Alexandrian desire for more worlds to conquer, and in East Asia that meant China. In the spring of 1586, Toyotomi Hideyoshi, the Taiko-sama, conqueror of Japan, first expressed his dream of a great Oriental Empire ruled by a Japanese sovereign to the Jesuit Vice-Provincial Gaspar Coelho. His plan
86 See SANSOM, JAPAN 1334-1615, supra note 80, at 331. See also CARL STEENSTRUP, A HISTORY OF LAW IN JAPAN UNTIL 1868, at 104 (2d ed. 1996) (discussing the disarmament of farmers and warriors).
87 Initially known as Kinoshita Tokichiro, Hideyoshi was of humble origins. He was born the son of a common foot soldier who had been in the service of the father of Oda Nobunaga, and he possessed no formal family name. At a young age he became a stable boy for the Shogun Ashikaga Yoahoaki, and eventually fell into a life of crime. Meanwhile, Oda Nobunaga rose to prominence as a political leader in Japan, and the Shogun felt threatened and made an attempt to curtail Oda's influence. In 1558, Hideyoshi joined the army of Daimyo Oda Nobunaga and proved to be an asset to the Daimyo in his efforts to gain power. The Shogun Yoshiaki fled from Oda's forces and with the support of two of Oda's rival daimyo, Mori Motonari and Uesugi, took refuge in Chuhoku. Hideyoshi gained much of his reputation as a military leader by his siege of two Mori castles. Oda assumed control of Kyoto in 1576 but died in 1582 when forces led by an ally, General Akechi Mitsuhide, turned on Oda at Honnoji Temple in Kyoto. It is believed that Oda committed seppuku while the temple burned around him. Upon learning of the death of his commander, Hideyoshi executed an abrupt peace agreement with Mori Terumoto. Hideyoshi aspired to succeed Oda and defeated General Mitshhide at the Battle of Yamazaki. He did not, however, have the forces to defeat daimyo Tokugawa Ieyasu, who was in charge of northeastern Japan. As a result, Hideyoshi established his seat of government at Osaka Castle. He desired the title of Shogun, but his lowly heritage placed the position beyond him. He was appointed kanpaku in 1585 by Emperor Oogimachi, and in 1586 was made dajodaijin(Chancellor). CARAWAY, supranote 85.
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was to form an alliance with Joseon's King Sonjo, march northward up the Korean peninsula with Joseon troops in the vanguard, and conquer the Chinese Ming Empire "as easily as a man rolls up a mat."88 Korea refused the overture, and in response, Hideyoshi commenced an invasion of Korea.
During this late 16th century period, there were, in fact, two discrete invasions, and both were precipitated by the aspirations of Hideyoshi to conquer Ming China. The first, often denoted the Japanese War of Imjin,89 began in May of 1592 when Hideyoshi moved an expeditionary force of approximately 50,000 troops across the Tsushima Strait and landed on the beachhead near Busan in the south of the Joseon. The invasion force overwhelmed the ill-prepared Joseon defenders, and it advanced inland in three separate columns toward the capital in Hanseong (present-day Seoul).90 While the main objective of the invasion was to reach the jewel of China, many sources have concluded that a subsidiary goal was to plunder cultural objects. It has been claimed that:
The Japanese deployed six special units with orders to steal books, maps, paintings, craftsmen (especially potters) and their handicrafts, people to be enslaved, precious metals, national treasures, and domestic animals. Meeting little resistance, the Japanese ravaged the civilian population. Entire villages were swept up in the raids. Japanese
88 See id. at ch. 14. It has also been suggested that he disclosed his plan to Mori Terumoto at approximately the time of the Takamatsu siege. See Hideyoshi's Invasions of Korea, http://en.allexperts.com/e/h/hi/hideyoshi's-invasions of korea.htm. 89 The invasion ("Imjin Waerun") began in 1592, so named because it was an Imjin year in the Korean sexagenery cycle. It is also known as the "Bunroku no Eki" in Japanese. Imjin, the 29th binary term of the cycle, is a Sino-Korean word composed of the Chinese pictogram characters of im (ren in Chinese) for water and jin (chen in Chinese) for dragon. See also SAMUEL MARTIN, YANG HA LEE & SUNG-UN CHANG, A KOREAN-ENGLISH DICTIONARY 1363 (1967) (defining imin as the 39th binary term of the sexagenary cycle); Don M. Lopez, It's All in a Name,
http://www.imjinscout.com/ImjinName.htnl (explaining the etymology of
imjin and its significance).
90 The three forces were commanded by Japanese Generals Kuroda
Nagamasa, Konishi Yukinaga, and Kato Kiyomasa. Kuroda's troops moved through the western provinces and over the Chupungnyeong Ridge, Konishi moved up the center of Gyeongsang Province through the Oryong Pass, and Kato moved north from Busan to Gyeongju and joined Konishi near Cheongju. See CARAWAY, supranote 85.
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merchants sold some of their loot to Portuguese merchants
anchored offshore and took the rest to Japan.91
News of the advancing Japanese forces reached the Yi Court in Hanseong, and King Seonjo fled the capital city and proceeded north through Gaeseong to Pyongyang. No attempt was reportedly made by the governing forces to defend the capital, and the citizens of Hanseong expressed their outrage at the evacuation by looting and burning warehouses, armories and government buildings. It is speculated that much cultural property was, on this occasion, actually lost at the hands of the citizens themselves. In fact, when the Japanese forces entered Hanseong, they met little or no resistance, and it was reported that they found the city and its cultural and political resources in ruin.92
After securing the capital, the Japanese forces proceeded northward, but met determined resistance near the Imjin River. The battle at that location lasted for three days during which time King Seonjo retreated to the Korean/Chinese border city of Uiju located on the Yalu River. Under tremendous pressure from advancing forces, Seonjo dispatched envoys to Beijing to beseech Ming China for help. While the Japanese General Kornishi captured the city of Pyongyang and remained there awaiting resupply, Japanese General Kato marched eastward, crossed the Tuman River and entered Manchuria (northeastern China). There he met heavy Jurchen resistance and was made to withdraw back into Korea. This incursion was, in fact, the only time that Japanese forces actually entered China on this campaign.
Ming China responded to the Korean plea for assistance in July 1592 by sending a modest 5,000 troops to Korea. Proceeding southward toward Pyongyang, the forces met General Kornishi, but were decimated in a single night's conflict.
Meanwhile, Korea's irregular forces, composed predominantly of citizens and Buddhist monks, met with some success at resistance. In fact, they have been widely credited with ultimately playing a critical role in quelling the ground threat of Japan. A decisive battle, and one that possesses much cultural significance, was fought at Gilju in northern Korea in January 1593. There,
91 Id.
92 It is also said that angry mobs destroyed the buildings that contained the census documents and slave registries, thus freeing many slaves. Id.
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insurgency leader Jeong Mun-bu 93 defeated formidable ground forces led by General Kato.94
While the Japanese had experienced considerable success on
land, they were not generally victorious on the seas. Much of the
credit for Korea's eventual triumph over the Japanese is attributed
to Admiral Yi Sun-sin. This was due not only to his knowledge of
tactics and strategies but also to his insight into the design of ships
known as geobukseon or "turtle ships."95 By employing these fast
and maneuverable ships, Yi effectively neutralized the Japanese
fleet. Except for the brief and unsuccessful sortie into China by
General Kato, Hideyoshi's northernmost forces remained in
Pyongyang awaiting re-supply. In a series of battles culminating
in the Battle of Hansen Island, 96 Admiral Yi eventually controlled
the sea lanes to the Yellow Sea, and effectively terminated re-
supply of the Japanese troops in the north of Korea. 97
In the winter of 1593, Ming China sent military troops to Korea to assist the indigenous army. The combined forces successfully drove the Japanese out of Pyongyang, and in February of that year,
93 Jeon Mun-bu was also known as Chong Mun-pu.
94See TURNBULL, supra note 50, at 133. A memorial consisting of a two-meter tall stone sculpture known as the Bukgwandaecheopbi was erected in 1707 to commemorate the efforts of Jeong Mun-bu. It was removed from North Korea in 1905 during the Japanese occupation of Korea and taken to the Yasukuni Shrine in Tokyo. See Janus-FacedJapan, supra note 42 (giving a brief account of the statue's history).
95 Although modified in hull design to permit for faster speeds and often possessing a greater number of oar positions, vessels used in battle during the 16th century were similar to those constructed by merchants. A general tactic in battle was to board an opponent's vessel and engage the crew in hand-to-hand assault combat. The kobukso design for warships attempts to counter that technique and purports to have originally been introduced in 1419 in raids against pirates. It is essentially a flat-bottomed vessel approximately 100 feet in length, possessing a 25-foot beam and two masts. Yi allegedly introduced the concept of positioning an iron plate roof over the deck to repel arrows, cannon and persons attempting to board. As an offensive attack ship it was fitted with 13 cannons on the rowing deck. A distinctive serpent head was reposed on the bow. See CARAWAY, supra note 85; TURN-BULL, supranote 50, at 243-44.
96 The battle commenced on August 14, 1592 near the island of Handando. Korean forces destroyed more than fifty-nine Japanese ships and killed
approximately 9,000 Japanese soldiers. See SAMUEL HAWLEY, THE IMJIN WAR: JAPAN'S SIXTEENTH-CENTURY INVASION OF KOREA AND ATrEMPr TO CONQUER CHINA 236 (2005) (noting that the Koreans destroyed fifty-nine Japanese ships and stating
that "[a]s for the number of Japanese dead," the Koreans "inflicted" "heavy losses"). See also NANJUNG ILGI: WAR DIARY OF ADMIRAL YI SUN-SIN 3-9 (Pow-Key Sohn ed., Ha Tae-Hung trans. 1977) (providing daily accounts of the battle by the key Admiral in the campaign).
97 See LEE, supranote 72, at 214.
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Chinese General Li Rusong attacked the rear of Japan's army and destroyed its food supplies. This initiative precipitated General Kornishi's further withdrawal from Seoul. It has been reported that retreating Japanese troops burned much of the capital including the Gyeongbok and Changdeok Palaces, 98 and that much cultural property was consequently lost or plundered. By summer of that year and with the exception of a small residual force in Busan, the Japanese army was essentially expelled from Joseon.
In 1594 peace negotiations were opened, and reciprocal envoys were dispatched. Due to what was either a considerable misunderstanding of the political reality by both sides or an ill-conceived deception by one party or the other,99 negotiations broke down, and in 1596, hostilities resumed. 100
98 CARAWAY, supranote 85.
99 It is reported that Ming Emperor Shen Tsung assumed that Hideyoshi considered himself to have been defeated in the war and was prepared to submit to China's tributary system of foreign relations. As a result, an offer was made to recognize Hideyoshi as King of Japan, which would formally enable him to engage in trade with the Ming Dynasty. It has also been opined that Hideyoshi either believed that China was ready to submit to his rule and accept him as emperor or in the alternative was enraged by the apparent slight of the Emperor of Japan in response to the offer to make Hideyoshi king. As a consequence, Japan issued demands that China subjugate itself to Japan. The four demands were: (1) a daughter of the Ming Emperor was to be sent to Japan to become the wife of the emperor; (2) normal trade relations between Japan and China were to be reinstituted; (3) the southern provinces of Korea were to be ceded to Japan; and
(4) a Ming prince and other officials were to be sent to Japan as hostages. See id.
100 Aware of the key role played by Admiral Yi and Korea's naval forces in the defeat of the first Japanese invasion, the Japanese sent an agent to the Yi Court with false intelligence to the effect that General Kato would mount an assault on a specific day at a specific location along the coast. The Yi government accepted the information as true and ordered Admiral Yi to intercept the invaders. Admiral Yi reportedly thought better of the information and refused. See TURNBULL, supra note 50, at 182-83.
Admiral Yi had originally been favored in his appointment as commander of naval forces by the Namin faction from the south of Korea and later the Dong-in faction of the East. The Seo-in faction of the western provinces favored Won Gyun (also "Won Gyun"), a commander of one of the Jeolla district naval stations. As a result of his refusal to proceed against Kato, Yi was relieved of his command and jailed in 1597 by King Seonjo. Admiral Won Gyun was appointed his replacement. Won Gyun proved to be less than competent and in August of 1597, the Japanese engaged the Korean fleet in the Chilcheollyang strait. Due to myriad tactical errors by Won Gyun, the Korean navy suffered a devastating defeat with 157 Korean ships reportedly sunk. Thereafter, Admiral Yi was reappointed head of the Korean navy. He defeated General Konishi and recaptured control of the Korean seas at the Battle of Myeongnyang, and the Japanese navy was routed. See ILGI, supra note 96, at 313 ("At this tragic sight, all other enemy vessels, being disheartened, gave up the right and fled far away and did not return to attack any more."); TURNBULL, supra note 50, at 202.
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Japan's second expeditionary force of approximately 150,000 soldiers landed in Gyeongsang Province. The initial land objective was the Jeolla Province in southwestern Korea. However, due to the resolve of the Korean forces and the fact that China responded immediately by sending over 40,000 troops to the region, the Japanese were thwarted. The invaders were forced to secure their positions, and it was at this time in late 1596 that Japanese officers were reported to have sent pickle barrels containing 38,000 Korean ears to Kyoto to reinforce the faith in Japanese military prowess. The ears remain in the Mimizuka, or "Mound of Ears," in Kyoto. By late 1597, news of the defeat of General Kornishi at the Battle of Myeongnyang reached General Kato, and in retaliation, he resolved to burn Kyeongju, the former capital of the Silla Kingdom. In the course of the offensive, the Bulguksa Temple, a prominent place of Korean Buddhism, was destroyed.
The Japanese withdrew south to Ulsan, and there in January 1598, the Japanese and Chinese forces met in a massive battle. Following extensive Japanese losses, exacerbated by lack of provisions, the defenders were finally able to repulse the Chinese offensive. The spring of that year saw renewed and intensified involvement of Chinese forces in the effort, and although the tide of battle frequently changed, the Japanese were essentially held to coastal positions in the southern, southeastern, and central regions of the peninsula.
On September 18, Hideyoshi suddenly died, and the Council of Five Regents that succeeded him in power decided to formally end the Korean offensive. The decree for withdrawal of Japanese forces was transmitted in October, and by the early winter of 1598 removal had formally commenced. Concerned with the volatile politics of the Yi Court and desiring one final victory, Admiral Yi Sun-sin engaged the retreating Japanese fleet in Jinhae Bay off of Noryang Point in the Tsushima Strait on December 16, 1598. Both sides suffered heavy losses, and Admiral Yi was killed while defending General Chen Lin's flagship.
The extended conflict's effect upon Korea and its infrastructure was tremendous. Invading and defending forces depleted grain supplies and despoiled fields and farms. Many cities were burned by invaders or by disgruntled citizens, and much tangible cultural property was victimized. However, perhaps the greatest casualty was the loss of considerable human capital of Korea; it has been estimated that between fifty and sixty thousand captives were taken to Japan by their captors. As a result, much of the cultural
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property that was ultimately removed to Japan took the form of intangible indigenous knowledge reposed in the minds of the artists and skilled craftsmen, potters and celadonware ceramicists' 01 and others taken to Japan to develop and expand Japanese arts. 10 2
Influential Japanese daimyo, many of whom were devotees of the coveted tea ceremony, sponsored the building of kilns and the development of ceramic production to be staffed by Korean immigrants. For example, Nabeshima Naoshige, conqueror of southern Hamgyeong, Korea, established a kiln in Imari. It is at that location, in 1616, that a Korean potter, Yi Sam-pyeong, is reported to have discovered the unique clay that eventually led to the production of the famous porcelain of Japan. In addition, Shimazu brought several Korean potters with him upon his return to Satsuma. These craftsmen are, in fact, the forefathers of the famous contemporary pottery kilns of that area of Japan. In general, much of the expansion of the ceramic crafts for which Japan has become so famous appears to coincide with the arrival of Korean potters following the Bunroku and Keich6 military campaigns (1592-98) (collectively, the Imjin War). Furthermore, the cultivation of this budding industry was actively encouraged by the reallocation of political domains under the new Tokugawa government.103
101 Celadon is a family of transparent, crackle glazes. Although the actual colors may vary, the most prized are often found in hues of green-blue or grey. The glaze is frequently found on a ground of porcelain or white stoneware. At times, small pieces of diffusely colored glass are inlaid in the primary or base vessel and then carved to produce a unique effect. The Korean method was developed and refined during the tenth and eleventh centuries and found its way to Japan in the sixteenth century. See generallysources cited supra note 70.
102 It has been reported that prior to the invasion, Hideyoshi hired two famous Korean potters to manufacture roof tiles for the Palace of Jurakutei. Under the direction of renowned tea lemoto Sen Rikyu, these craftsmen were inspired to develop the raku style of tea bowl often used in the famed Japanese tea ceremony. See TURNBULL, supranote 50, at 231.
103 See Louise Allison Cort, A Tosa Potter in Edo, in THE ARTIST AS PROFESSIONAL IN JAPAN 103, 104 (Melinda Takeuchi ed., 2004) ("Widespread daimyo engagement in the sponsorship of ceramic production coincided with the arrival of Korean potters in Japan in the aftermath of the Bunroku and Keichb military campaigns (1592-98) [collectively the Imjin War] and was encouraged by the reallocation of domains under the new Tokugawa government.").
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4.2. The Late Nineteenth Century and ContinuingThrough Japan's ColonizationofKoreafrom 1910 to 1945
The second period of significance to the claimed movement of cultural properties from Korea to Japan commenced in the late 19th century. The 19th and early 20th centuries were punctuated by a perception that Korea was the uncut gem of the East, and Japan, China and Russia competed vigorously for its economic and strategic value. During the 1860s, the Meiji Restoration had opened Japan to many of the influences of the West, but Japan's ambition to become a world power had cost the country much of its advantage in its trade relations with many of the powerful countries of the world. As part of the effort to restore greater balance in general trade relations and to effect a partial remedy for the "unequal" treaties that the country had been forced to enter into in order to gain the favor and cooperation of many Western nations, Japan sent envoys to Korea in an attempt to extend its influence over the resource-rich country. These incipient advances were rebuffed as the Daewongun 04 of Korea held many of the new "Western" perspectives assimilated by Japan in open contempt.105 In a considered response, the Japanese reportedly seized upon the strategy that the United States had successfully employed on July 9, 1853 when it sent Commodore Perry and the Black Ships into Edo Bay. Additionally, in 1875 Japan dispatched a warship and troops to a fort on Ganghwa. 106 Japan rationalized this assertive action by claiming that Korean forces had launched an unprovoked attack on Japanese vessels. Later, under the guise of reconciliation, Japan followed the aggression by sending an emissary, Kuroda Kiyotaka, to Korea to negotiate a peaceful resolution to the conflict. 107 In February 1876, Japan and Korea formally signed the Treaty of Ganghwa, which granted certain concessions to Japan that it had not been able to secure diplomatically, namely, extraterritorial rights and the opening of three ports of trade in Korea. The treaty also significantly emphasized the political autonomy of Korea and asserted its freedom from the political
104 The Daewongun was the father of King Gojong and served as regent from
1865 to 1873. See MICHAEL J. SETH, A CONCISE HISTORY OF KOREA FROM THE NEOLITHIC PERIOD THROUGH THE NINETEENTH CENTURY 221 (2006) (giving a historical account of reforms under the Taew6n'gun).
105 See TENNANT, supra note 72, at 207.
106 See SETH, supranote 104, at 223 (providing an account of reforms under the Taew6n'gun).
107 See TENNANT, supranote 72, at 209.
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influences of China. 108 However, the statements in the treaty did not quell or adequately reflect the state of unrest extant in the region. In the several years that followed, armed conflict arose first between Japan and the Qing Dynasty of China and later between Japan and Russia, as each attempted to secure its national influence over the Far East in general, and over Korea in particular.
4.2.1. Japan,Korea, and China: The Sino-JapaneseWar 1894-95
Until the Treaty of Ganghwa, Korea was considered a tributary of the Qing Dynasty of China. Following the treaty, however, the country purported to be independent, at least in the eyes of Japan10 9 To the contrary, China, not a party to the treaty, did not capitulate to this view, and it continued to assert considerable influence over the country. For example, on the Korean domestic front, the ancient bonds with China remained of considerable importance to the conservative elements of society, and the abiding historical relationship between the countries served as a means by which to pragmatically temper, if not stifle, the influence of the Japanese. Simultaneously, however, the progressives in Korea professed to be proponents of change and modernization, and they looked to Japan for assistance in advancing their interests." 0 It happened that while King Gojong"' of Korea (son of the Taew6n'gun) favored modernization and the development of closer ties with the West, he was also a political moderate and heavily influenced by Huang Zunxian, councilor to the Chinese legation in Tokyo. Consequently, the end result was that he acceded to the approach taken by China rather than that taken by Japan, and efforts at improvement of the country's political and economic posture under his reign were largely founded upon reforms being employed in China.
108 See id. at 208. Until the Treaty of Ganghwa, Korea was considered a tributary of the Qing Dynasty of China. Following the First Sino-Japanese War in 1895, the Treaty of Shimonoseki was signed between China and Japan. It recognized the "full and complete independence and autonomy of Korea." Following the treaty, Korea was no longer considered to be a tributary state of China.
109 Article 1 of the treaty recognized Korea as an autonomous state with sovereign power. See BRUCE CUMINGS, RESTORATION, REFORM, REVOLUTION IN KOREA'S PLACE IN THE SUN 102 (2005) ("Article 1 recognized Korea as an
'autonomous' (chaju) state with sovereign rights the same as Japan's .
.
110 TENNANT, supranote 72, at 209.
111 In some documents referred to as King Kojong.
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Contemporaneously and as previously referenced, however, the Daewongun,1U2 father to the King, held the West in general, and Japan in particular, in unequivocal contempt. 113 The father had, in fact, been forced out of power in 1872 by his son, and in the decade that followed his ouster, he lay in wait and patiently made plans for a coup through which he might regain his imperial seat. He eventually seized an opportunity to affect his strategy, and in 1882 he led a group of disgruntled soldiers in an attack on the Japanese legation. Although the assault did not directly achieve the goal of deposing the King, it did result in the burning of the Japanese diplomatic compound and the introduction of instability into the area. As a result of the Taew6ngun's attack, the Japanese minister, Hannabusa Yoshitada, was forced to flee to Nagasaki with the assistance of a British survey vessel. The Japanese perceived this event as an opportunity to further press their cause, and they responded immediately by sending a flotilla of ships to Incheon. The Chinese intervened by sending four ships and 4,500 men to the location, and the Japanese assault was forestalled. 114
Negotiations ensued, and with the counsel of the Chinese, Korea made reparations to Japan as compensation for its losses. In addition, and in accord with the resulting Treaty of Incheon (Jemulpo), the Japanese were also granted formal permission to thereafter station a company of soldiers in Korea to protect their legation.
112 The Taew6n'gun assumed power in 1864 and was deposed in 1872 at age fifty.
The basic goals of the Taew6ngun were to preserve the country and the dynasty by removing the superficial causes of peasant discontent (bureaucratic corruption, illicit taxation, official usury), restoring the power and prestige of the throne to earlier levels, increasing the central government's control over financial resources, eliminating subversive and heterodox doctrines, and building up military strength by traditional means.
JAMES B. PALAIS, POLITICS AND POLICY IN TRADITIONAL KOREA 3 (Harv. Univ. Press 1991) (1975).
113 See, e.g., CUMINGS, supra note 109, at 100 ("The Taew6n'gun had a simple foreign policy: no treaties, no trade, no Catholics, no West, and no Japan. He viewed Japan's progressive reforms as yet more evidence of how far it had fallen from the way, how little the island people really understood the virtues of a Sinic world order.").
114 TENNANT, supranote 72, at 207.
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Episodic confrontations continued between the countries," 5 and in order to lend some stability to the fragile state of affairs in the region, China and Japan formally agreed in April 1885 to the terms of the Convention of Tientsin. Signed by Li Hung-chang and Ito Hirobumi, the agreement posited that: (1) there would be a mutual and simultaneous withdrawal of Japanese and Chinese forces from Korea; (2) neither Japan nor China would send instructors to Korea to train its military; and (3) neither Japan nor China would further reintroduce troops into Korea without notifying the other party.
All was not stable on the domestic front. The peasants of Korea had, for decades, borne tremendous burdens due to droughts, the loss of Korean family fisheries to Japanese companies, a growing scarcity of staple foods such as rice as a result of their being redirected to Japanese markets, and the rising burden of domestic taxation. Peasant protests and demonstrations had become commonplace in many of the provinces, particularly in the rice growing area of Jeolla. Eventually, in 1884, Donghak"16 representatives traveled to Seoul to appeal to King Gojong for relief, but their pleas went unheeded. Rebellion broke out in Kobu when Jeon Bong-jun," 7 a village teacher, and a group of approximately 1,000 followers seized a local county office, demolished a reservoir that the locals had been forced to build, liberated grain from local storehouses, and distributed the spoils to local starving peasants. The uprising accelerated and spread throughout the southwest region of the country, and the rebels captured the capital city of Jeonju in May 1894.
King Gojong met with little success in suppressing the rebellion with Korean troops, and on June 1, 1894, he requested the military assistance of the Chinese. On June 6, in accordance with the terms of the Convention of Tientsin, Li Hung-chang informed Japan of China's intention to send forces to Korea, and in June 1894 approximately 3,000 Chinese troops entered the city of Gongju on
115 For an excellent political discussion of then current events, see CUMINGS, supranote 109, at 107-15 (describing Korea's "phase of fitful Westernization [that] was constantly thwarted by reactionary scholars and officials").
116 Donghak, a doctrine that was given content by Choi Chae-wu in 1850, was the title given to a grass roots peasant movement that had begun in the 1860s. Its slogan was "Drive out the Japanese dwarfs and the Western barbarians, and praise righteousness." Id. at 115 (quoting TAKASHI HATADA, A HISTORY OF KOREA 100 (Warren W. Smith, Jr. & Benjamin H. Hazard trans., 1969)).
117 Jeon Bong-jun's father was executed in an earlier and similar uprising. See TENNANT, supra note 72, at 223.
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the Asan Gulf. Shortly thereafter, and in response to the military action of China, a Japanese battalion landed at Incheon.
Meanwhile, with the assistance of the Chinese, the immediate threat of peasant rebellion was quickly quelled, and the rebels signed a peace agreement with the Korean government on June 11. On June 16, the Chinese approached Japan proposing a mutual withdrawal of forces, but on the same day, Mutsu Munemitsu, the Japanese Minister of Foreign Affairs, informed Wang Fengzao, the Chinese Ambassador to Japan, that instead of withdrawing, Japan had decided to send reinforcements to Korea to protect its interests. In July, Japanese soldiers took control of the Korean Imperial Palace, seized King Gojong, and as a symbol of their prerogative, installed the Daewongun in a nominal position of power. However, it was a pyrrhic victory for Daewongun, for without consultation with either him or the King, a new interim government that was exclusively under the control of Japan was immediately formed. The Advisory Council, as the governmental structure came to be known, drafted a new constitution for Korea that explicitly severed ties with China and established a State Council, which was comprised of a Prime Minister and a seven-member cabinet.118
On August 1, 1894, war was officially declared between Japan
and China. The majority of the armed conflict occurred on Korean soil, and within a few short months, China was driven from the Korean Peninsula. Thereafter, fighting moved briefly into China, and the final significant land battle occurred at Port Arthur on November 21. The New York World newspaper reported an alleged massacre of approximately 18,000 Chinese civilians at the hands of the Japanese; however, the reports were later discredited by the New York Times. 119 The final naval battle of the war occurred on January 1, 1895 at Weihaiwei, during which the Chinese Navy was soundly defeated.
118Id. at 225.119 See Daniel C. Kane, Each of Us in His Own Way: FactorsBehind Conflicting
Accounts of a Massacre at Port Arthur, 31 JOURNALISM HIST., 23-33 (2005). See generally JAMES CREELMAN, ON THE GREAT HIGHWAY, THE WANDERINGS AND ADVENTURES OF A SPECIAL CORRESPONDENT (Cardinal Book 1998) (1901); JAMES
ALLAN, UNDER THE DRAGON FLAG (1898); Frederic Villiers, The Truth About Port Arthur, 160 THE N. AM. REV. 325 (1895), availableathttp://cdl.library.comell.edu/
=
cgi-bin/moa/pageviewer?frames=l&coll=moa&view=50&root %2Fmoa%2Fnora%2FnoraOl6O%2F&tif=00337.TIF&cite = http%3A%2F%2Fcdl.libra ry.comell.edu%2Fcgi-bin%2Fmoa%2Fmoa-cgi%3Fnotisid%3DABQ7578-0160-41.
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Contemporaneously, a new uprising of the Donghak that had been fomented in Jeolla and Chungcheong was quickly suppressed by the Japanese. Jeon Bong-jun, the leader of the Donghak of Jeolla, was captured, taken to Seoul, and executed.
In April 1895, China and Japan signed the Treaty of Shimonoseki, 120 in which China agreed to remain out of Korea. The treaty also ceded the Liaodong Peninsula and the Islands of Taiwan and Pescadores to Japan. Japanese domination of the area was becoming secure, and it was evident to the world community that Japan was rapidly becoming the power to deal with regarding any issue affecting the region.
4.2.2. The JapaneseProtectorateand JapaneseColonization of Korea
Fearing the growing influence of Japan upon the Korean State, Empress Myeongseong' 2l had, in a series of diplomatic efforts, made attempts to forge stronger diplomatic relations first with China and later with Russia. Due to the direct threat to stability that she posed to Japan, she was assassinated, allegedly by Japanese agents, in 1895, in Gyeongbok Palace. 22 In separate conflicts, Japan had defeated China' 23 and later defeated Russia. 124
120 See Treaty of Shimonoseki, Japan-China, Apr. 17, 1895, translated in
http://www.taiwandocuments.org/shimonoseki01.htm. 121 Also known as Queen Min. 122 According to authorities, a plot to kill the Queen was formulated by the
then new Japanese minister to Korea, Miura Goro:
In October 1895 a Japanese guard unit went to meet the [D]aew6n'gun outside the West Gate of Seoul, to escort him back to Kyongbok [Gyeongbok] Palace. A Korean "training unit" accompanied this retinue, and when it reached the palace the Japanese and Korean soldiers fought their way into the palace, grabbed Queen Min before she could run away, and stabbed her in the chest. They then dragged her out to the garden, doused her with kerosene and lit a match, hoping to destroy the evidence of their foul deed.
Japan denied any involvement, but American and Russian advisers had been in the palace and witnessed the murder. Much later, documents came to light showing Miura had plotted every aspect of the murder with Japanese thugs, who had quietly joined the procession as it entered the palace grounds. After wide international protest, Tokyo punished some of the miscreants and got on with the reform program.
CUMINGS, supranote 109, at 121. See also TENNANT, supranote 72, at 227.
123 See AllExperts.com, Treaty of Shimonoseki, http://en.allexperts.com/ e/t/tr/treaty-ofsimonoseki.htm ("The [Shimonoseki] treaty ended the First Sino-Japanese War of 1894-1895 as a clear victory for Japan.").
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In July 1905, and in recognition of the state of affairs existing in Korea, the Taft-Katsura Agreement was concluded between William Howard Taft of the United States and Prime Minister Katsura Taro of Japan. Founded upon diplomatic notes that had been exchanged between President Roosevelt and Japanese representatives, the Agreement confirmed that the occupation by Japan of the Korean peninsula was acknowledged by the international community to be preferred, secure, and in many instances necessary. Specifically, and in accord with the Agreement, the United States would not question the Japanese protectorate that was to be established over Korea, and reciprocally, Japan would not question America's interest and activity in the Philippines. 125
A statement attributed to Theodore Roosevelt confirmed the
necessary control of the peninsula by Japan. It read:
To be sure, by treaty it was solemnly covenanted that Korea should remain independent. But Korea itself was helpless to enforce the treaty, and it was out of the question to suppose that any other nation, with no interests of its own at stake, would do for the Koreans what they were utterly unable to do for themselves... Korea has shown its utter inability to stand by itself.126
Prime Minister Ito Hirobumi travelled to Seoul, and the formal Eulsa 127 Treaty 128 was signed on November 17, 1905.129 It was
124 The peace treaty for the Japanese-Russo War was signed in 1905. It was brokered by Theodore Roosevelt at a conference at Portsmouth, New Hampshire. Roosevelt won the Nobel Peace Prize for his efforts in this regard. CUMINGS, supra note 109, at 141-42.
125 Id. at 142.
126 The statement is attributed to Theodore Roosevelt. AllExperts.com, Korea Under Japanese Rule, http://en.allexperts.com/e/k/ko/korea-under-japanese-rule.htm (last visited Feb. 28, 2008).
127 Eulsa is the 42nd year of the Sexagenary Cycle and the year in which the treaty was signed. See Eulsa Treaty, TripAtlas.com, http://www.tripatlas.com/ EulsaTreaty (describing the history and circumstances of the Eulsa Treaty).
128 On June 23, 2005, both South and North Korea declared the Treaty null and void. Id. 129 It is reported that Ito entered the palace with Japanese troops and, surrounded by soldiers, Emperor Gojong and his chief ministers were, over a two day period, intimidated and importuned to sign the agreement. The Emperor refused to sign as was required in order for the treaty to be effective under extant Korean law; however, five other ministers did sign. They were Lee Wan-Yong, Minister of Education, Lee Geun Taek, Minister of the Army, Lee Ji-Yong,
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through this treaty that the Japanese protectorate over Korea was formally established. According to the treaty, Korea would cede its foreign relations to Japan and place control of its internal affairs into the hands of the Resident General who would be aided by twelve Commissioners. The Commissioners would serve as advisors to the three treaty ports, and to the governors of Seoul and the eight provinces.130
While Emperor Gojong made numerous independent attempts to publicly discredit the treaty and bring the plight of Korea to the attention of the international community, they proved futile. For example, in June of 1907, the King surreptitiously sent representatives to The Hague to bring the problem of Korea's loss of self-determinacy to the attention of the international delegates that were assembled there.'31 These envoys met with little success, however, and Japan responded by removing Gojong from the throne and replacing him with a puppet, his son, Seonjong.132
Terauchi Masatake, the minister of the Army of Japan, assumed the position of the Resident General of Korea in July 1910. On August 22nd of that year, the Japan-Korea Annexation Treaty was signed by Masatake and Lee Wan-Yong, the then-Prime Minister of Korea.133 Like his predecessor, Emperor Gojong, then-Emperor Yeonghui also refused to formally acknowledge the treaty, and it was that lack of formal ratification that called the legality of the Annexation Treaty into question under international standards. 34
Minister of the Interior, Park Je-Sun, Minister of Foreign and Korean Affairs, and Kwon Jung Hyun, Minister of Agriculture. Prime Minister Han Kyun Sol also refused to sign. CUMINGS, supranote 109, 139-48. See also TENNANT, supra note 72, at 236-37.
130 TENNANT, supra note 72, at 236. 131 Id. at 239. See also CUMINGS, supra note 109, at 145 ("[In 1907 [Gojong] dispatched three Koreans to the Second Hague Peace Convention .... "). 132 Seonjong was the last Emperor of the Yi (Joseon) Dynasty that had commenced in 1392. 133 Lee Wan-Yong assumed the office of Prime Minister at the time that Gojong was removed (abdicated) and apparently he is the former Minister of Agriculture who in 1905 had also signed the Eulsa Treaty. In 1909, a mob burned his house and, in December of that year, he was stabbed in an assassination attempt. CUMINGS, supra note 109, at 145. 134 The 1965 Treaty of Basic Relations Between South Korea and Japan states, "It is confirmed that all treaties or agreements concluded between the Empire of Japan and the Empire of Korea on or before August 22, 1910 are already null and void." See infra Appendix 1 (text of treaty in Japanese and English).
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Seonjong formally surrendered the throne on August 29, and
Korea forthwith became a colony of Japan.135 Japan is said to have had a free hand in virtually every aspect
of Korean life, both private and public, and like any other
international and cultural experience, there is a diversity of opinion
as to the consequences. As aptly stated by Bruce Cumings:
This colonial experience was intense and bitter and shaped postwar Korea deeply. It brought development and underdevelopment, agrarian growth and deepened tenancy, industrialization and extraordinary dislocation, political mobilization and deactivation; it spawned a new role for the central state, new sets of Korean political leaders, communism and nationalism, armed resistance and treacherous collaboration; above all it left deep fissures and conflicts that have gnawed at the Korean soul ever since.
Among Koreans today, North and South, the mere mention of the idea that Japan somehow "modernized" Korea calls forth indignant denials, raw emotions, and the sense of mayhem having just been, or about to be, committed. For the foreigner even the most extensive cataloging of Japanese atrocities will pale beside the barest suggestion of anything positive and lasting that might have emerged from the colonial period. Koreans have always thought that the benefits of this growth went entirely to Japan and that Korea would have developed rapidly without Japanese help anyway. Meanwhile on a sojourn in Taiwan... a scholar found nostalgia for the Japanese era at every turn .... So, if we find that Japan brought modern facilities to its colonies, do we place them on the ledger of colonialism, or of modernization? The Korean answer is "colonialism," and the Japanese and Taiwanese answer is
modernization." 136
135 CUMiNGs, supra note 109, at 145.136 Id., at 148-49.
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4.2.2.1. The Plightof Cultural PropertyDuringColonization
There is considerable evidence that certain cultural assets of Korea were adversely affected by the presence of Japan during the period of colonization. The following are discrete examples: (1) The Bukgwandaecheopbi, a 187 centimeter high (sixty-six cm. wide and thirteen cm. deep) Joseon-era stone monument erected in 1707 to commemorate the defeat in 1593 of Japanese forces by Hamgyeong Provincial Volunteers led by General Jeong Mun-bu was seized by the Japanese following the Russo-Japanese War in 1905, taken to Tokyo, and presented to the Japanese Emperor.137 The monument remained in the Yasukuni Shrine in Tokyo until its return to North Korea in March 2006.138 (2) In 1916, in order to construct buildings for the Japanese colonial government offices, forces tore down a number of structures on the grounds of the Gyeongbok Palace. While the Kunjongjun (the court house) was spared, the Hungrye Gateway was among the objects razed. Constructed during the Joseon Dynasty (1392-1910), the subject gate was one of three located in front of the king's court house and ceremonially used by visitors in the course of a formal audience with the king. The gate was restored in 2001.139 (3) If one visits the Kyoto National Museum, one might pause in a pavilion on its grounds that is supported by four stone pillars, each being two meters high. The pillars have their origin from the front of royal tombs in Korea and historically symbolized the power of Korean kings interred there. 40
During this same period of occupation, governmental officials were often known to have seized the opportunity to amass large collections of cultural objects. Following are certain examples of this action: (1) Upon the death of Ito Hirobumi, the first Governor General of Korea, over 1,000 pieces of celadon were found in his collection, and the third Governor General, Terauchi Masataka, reportedly accumulated 1,855 works of calligraphy, 432 books, and
137 Other select objects were given to the Emperor including rare celadon ceramics removed from the tombs of noblemen of the Goryeo Dynasty. MacIntyre, supranote 37.
138 The monument was returned following negotiations with South Korea and later transported to North Korea where it was placed back on its original pedestal. See infra Section 5.2.8 (describing return of the monument to Korea).
139 Zeno Park, Restoration of Old Palace Gate Means Return of National Pride, AGENCE FRANCE PRESSE (Oct. 28, 2001).
140 Maclntyre, supranote 37.
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2,000 pieces of celadon pottery.141 (2) In 1913, Terauchi removed 760 volumes 142 of the Annals of the Joseon Dynasty
(Joseonwangjosillok -The Truthful Records of the Joseon Dynasty) and sent them to Japan. The books had chronicled the daily activity of the 472 year Dynasty. They were originally placed in the Tokyo University library; however, all but 74 volumes were lost in the Great Kanto Earthquake of 1923. In 1932 twenty-seven of the volumes were given to Keijo Imperial University, the predecessor of Seoul National University. 143 The remainder was returned to Korea in 2006.144 The books had been designated Korean National Treasure number 151 in 1973 and became a UNESCO World Heritage Property in 1997. (3) In 1922, the then-Governor General of Korea obtained the Uigwe records that chronicled certain rituals and administrative events of the Joseon Dynasty and donated them to the Japanese Court. The subjects of the documents included details of the funeral of the Dynasty's last empress, Myeongseong, who had allegedly been assassinated by the Japanese in 1895. In March 2006, Korea requested that UNESCO include the documents on the World Heritage List. The volumes are currently in the Imperial Household Library in Tokyo, and a mission of Buddhist monks from Woljeong Temple in Gangwon Province and Bongseon Temple in Gyeonggi Province are joining forces to seek their return. 145
141 Id. The Terauchi collection has ended up at the Yamaguchi Women's University. 142 There is some confusion as to the original number of volumes. Some sources suggest that there were originally 1,707 volumes or 1,188 books. E.g., Seoul to Designate Joseon Dynasty Court Journals National Treasure, YONHAP NEWS AGENCY (July 19, 2006). 143 The books of the Joseon Dynasty had been disbursed to four temples in various rural locales during the Hideyoshi Invasions in order that they might be protected from loss; these particular volumes had been removed to Mt. Odae. Through the efforts of a Buddhist organization that had taken care of the books at Mount Odae, Pyeongchang in Gangwon Province and thanks to the generosity of Tokyo University, the remainder were returned to the university in July 2006. Japanese School Agrees to Return Korean Royal Texts to Seoul University, FIN. TIMES, May 30, 2006. 144 It has been noted that France possesses 297 Korean ritual texts that had been taken by French Naval Forces in 1866. They had been removed from the Joseon Kingdom royal archive (Oe-gyujanggak). They are reposed at the French National Archives in Paris, and while the late French president Francois Mitterand had indicated in 1993 that the books would be returned, no action has been taken. Looted HistoricalRecord Returns Home to Korea at Last, YONHAP NEWS AGENCY, June 1, 2006. 145 S. Korean Buddhists Push for Return of Historical Royal Records from Japan's Imperial Court,YONHAP NEWS AGENCY, Sept. 15, 2006.
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Finally, businessmen who moved to Korea to take advantage of the myriad of economic opportunities available to the Japanese also took advantage of the opportunity to assemble collections of Korean objects. For example: (1) Takenosuke Ogura, the head of the Japanese Electric Power Company in Korea in 1903 accumulated nearly 1,100 objects including celadon vases, bronze Buddhas, and a gold crown removed from the grave of a late fifth or early sixth century king of the Gaya Dynasty. 146 The collection is now reposed in the Tokyo National Museum. 147 (2) Seven centuries-old grey granite statues of a warrior, four children, and sixty-four Korean scholars, removed from Korea during colonization, had until recently been in the distinguished collection of Mamoru Kusaka. 148 These were recently returned to Korea.
4.2.2.2. Efforts to Inventory and ProtectCulturalProperty DuringColonization
It is of significant note that during the period of colonization Japan did initiate the first documented efforts to actually identify and catalogue Korean objects of cultural property. 149 A series of Korean laws and regulations were promulgated founded upon principles articulated in Japanese Meiji and early Taisho period laws that were directed towards preserving the cultural heritage of Japan.150 These laws and regulations included: (1) Lost and Stolen
146 Kakuchi, supra note 49.
147 Toyonobu Tani, the head curator of the museum, disclaims knowledge of any Korean claims for repatriation of the objects and has stated: "We take very good care of the artifacts so they can be used for academic purposes by Japanese people and by Koreans and Chinese." MacIntyre, supra note 35.
148 In July 2001, Kusaka voluntarily returned and donated these objects to a grateful Sejung Antique Stone Museum in Yongin, South Korea. Id.
149 See MacIntyre, supra note 37 (Kyoichi Arimitsu, reportedly one of the few surviving participants in the early stages of the Japanese effort to investigate Korean cultural properties. According to Arimitsu, the Japanese sent scholars to Korea to itemize cultural properties, and they helped compile a fifteen volume series of books on the subject of cultural property in Korea); see generally, Walter Edwards, Japanese Archaeology and Cultural Property Management: Prewar Ideology and PostwarLegacies, in A COMPANION TO THE ANTHROPOLOGY OF JAPAN 36 (Jennifer Robertson ed., 2005) (describing the evolution of Japanese archeological policies in relation to social and political context).
150 See Park Younbok, Dir. Gyeongju National Museum, Republic of Korea, Cultural Property Forum: The Export Policies of China, South Korea, and Japan, Asia Society (Apr. 9, 2003), http://www.asiasource.org/culturalheritage/ culturalproperty.cfm (providing a transcript of conference panel discussions including representatives of cultural institutions in Japan, Korea and China,
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Antiquities (1909), (2) Temples and Shrines Protection Laws (1911),
(3) Preservation of Stone and Metal Inscriptions (1916), (4) The Committee on the Investigation of Korean Antiquities (1916),151 (5) Regulations for the Preservation of Korea's Remains and Relics (1916), (6) Chosen Sotokufu Museum Laws (1924).152
The legal statements had three formal goals: 5 3
1.
To place within government control the identification, accounting, storage and movement of state registered cultural properties;
2.
The generation of revenue for the preservation and protection of architectural and monumental cultural objects, in situ, through ticket sales from those who desired to view them;
3.
The promotion of archaeological prospecting in order that additional sites or objects of cultural interest might be registered.
It has been suggested that the Korean laws were actually designed to discourage individual ownership of cultural objects and that the result of this cumbersome and complex system was private persons yielding their ownership and possession of most significant cultural items to the government or governmental
institutions.15
addressing basic principles and organizations of cultural property protection in the three countries).151 This law established the administrative mechanism through which the cultural property laws were carried out. 152 CHOSEN SOTOKUFU 1924: 215-30.
153 As a result of these theories, Japan's natural territory has been deemed to include Korea as well as parts of China. The anthropological theory of the period as proposed by the Japanese was that the Japanese and Korean races were of common origin, and thus there was logic in Japan assuming control of the Korean peninsula. See Diamond, supranote 56. See also JAPAN: ANCIENT CULTURES (1994), http://ancienthistory.about.com/library/bl/bl-japanancientcultures.htm (citing LIBRARY OF CONGRESS FEDERAL RESEARCH DIVISION, JAPAN: A COUNTRY STUDY (Ronald E. Dolan & Robert L. Worden eds., 1994) (1992)) (discussing early Korean migration to Japan between 300 BCE and 250 CE and the earliest written records on Japan as coming from Chinese sources circa 57 CE); Pai, supra note 63. See generally Hooker, supra note 58; see Howell, supra note 54; Murphy-Shigematsu, supra note 53 at 64; Maclntyre, supra, note 37 (quoting a professor Korean
literature at Waseda University in Tokyo as saying, "What the Japanese wanted to stress was that the Japanese and Korean roots are the same and that Korea became less prosperous only after it parted ways with Japan." ). 154 See Pai, supra note 61, at 619 (arguing that the bureaucratic laws, "which ruled that all discoveries, changes, investigations and transportation of state
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In the years that followed the creation of the Committee for the Investigation of Korean Antiquities, numerous missions, in fact, carried out excavations of locations such as the Leland Tombs dating to the Han Dynasty (second century), the Goguryeo painted tombs near Pyongyang, and remains of Baekje near Buyeo, Silla near Gyeongju, and Gaya near Gimhae from the third century Three Kingdom Kofun period.
Following Korea's independence from Japan in 1945, the administration of cultural property was formally divided between the North and the South. Consistent with the plan, the Office of Cultural Properties (Munhwajae Gwalliguk) was formally created in South Korea and the department was charged with the task of administering the tasks of protecting Korean culture within its jurisdiction. 5 5 In particular, the Office was to assume the responsibility of promulgating proper laws for the protection of cultural properties, receiving applications for registration of the properties, selecting and ranking national treasures and other cultural objects and sites, 156 overseeing the use of funds for the preservation and conservation of cultural properties, and marketing reproductions and facsimiles of the objects. As stated by the director of the Office in its official journal, "the goal of the office and its promulgation of cultural preservation laws and regulations is to preserve, manage, and reconstruct our cultural properties so as to hold on to our most precious ancestral heritage and keep them with us for eternity." 157 North Korea has also established similar organizations to protect its cultural properties. 158
properties be submitted on exact forms to the local police," were meant to deter individual ownership).
155 Id. at 620-21.
156 In the context of this article, it is interesting to note that the Office has proposed the identification and ranking of six "centres of culture" (munhwa-gwon). See id. at 624-25 (listing five of these six "centres of culture" ranked in descending order of importance as follows: national monuments, lifestyles and subsistence strategies, technological and scientific achievements, holy site or sacred places, and sites of myths or legends).
157 Id. at 620 (citing the 1965 directive and adding that "[t]he 'spirit of Korean Independence' ... is the most-often quoted criterion used to determine which objects and monuments should represent the Korean past").
158 North Korea (DPRK) has paid particular attention to the Goguryeo Tombs, primarily preserved by the Korean Cultural Preservation Center. Other agencies include the National Bureau for Management of Cultural Properties and the Hamhung National Research Institute of the Democratic People's Republic of Korea. UNESCO, Second Training Workshop on the Conservation of the
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Let us now turn our attention to the contemporary activities of Japan with respect to items of cultural interest and observe how cultural perspectives and changing political and economic influences have affected several of their laws and policies, both domestic and international.
5. JAPAN'S LAWS PROTECTING CULTURAL PROPERTY
5.1. GeneralDomestic Structure
In 1950, Japan passed the domestic Law for the Protection of Cultural Properties, 5 9 "[ilnitially promulgated on May 30, 1950, it
Goguryeo Mural Paintings, http://portal.unesco.org/culture/en/ev.php-URLID=26748&URLDO=DOTOPIC&URLSECTION=201.html (last visited Apr. 11, 2008) (describing the Workshop's main objective as being "to improve and strengthen national capacity, especially human resources at the Korean Cultural Preservation Centre in the Democratic People's Republic of Korea, with a view to establishing a multi-disciplinary team in charge of coordinating conservation of the tombs"). The tombs were made a world cultural heritage site on Oct. 20, 2001. See North Korea Books, Goryeo Museum, http://www.north-korea-books.com/servlet/the-259/GORYEO-MUSEUM/Detail (last visited Apr. 4, 2008) (describing the Goryeo Museum as an organization dedicated to protecting cultural objects, both tangible and intangible, of the Goryeo Dynasty, 935-1392 BCE, located in the building of Sonngyungwan which was the central institute of education during the Goryeo Dynasty). The Cultural Relics Publishing House in Pyongyang, North Korea has published some books which introduce North Korean cultural relics, such as the Goryeo Museum and the Bohyeon Temple in Mt. Myohyang. See generally North Korea Books, http://www.north-korea-books.com/.
159 Bunkazai Hogo H6 [Law for the Protection of Cultural Properties], Law No. 214 of 1950, availableat http://aw.e-gov.go.jp/cgi-bin/idxselect.cgi?IDX-OPT=3&HNAME=&HNAMEYOMI=%82%aO&HNOGENGO=S&HNOYE
AR=25&H_NO_TYPE=2&HNONO=214&HFILENAME=S25HO214&HRYA KU=I&HCTG=1&HYOMIGUN=1&H_CTG_GUN=I, translatedin Independent Administrative Institution, National Research Institute for Cultural Properties, http://www.tobunken.go.jp/-kokusen/ ENGLISH/DATA/Htmlfg/ japan/japan0l.html (stating its purpose to preserve and utilize cultural properties in an effort at furthering Japanese culture); see generally BARBARA E. THORNBURY, THE FOLK PERFORMING ARTS: TRADITIONAL CULTURE IN CONTEMPORARY JAPAN 55-56 (1997) (noting that "[s]ince passage of the Cultural Properties Protection Law (Bunkazai Hogoh6) in 1950, the word "cultural property" (bunkazai) has come to be frequently encountered in a range of places and circumstances: at historical sites, in museums, in the pages of programs distributed at folk performing arts events. Designation as Bunkazai signifies official recognition of cultural importance, with selections being made at the national, prefectural, and local government levels on the recommendation of committees of scholars and specialists. Bunkazai are the focus of official efforts to protect and conserve Japan's cultural heritage. The law, as it stands now, identifies five major classes of cultural properties. They are: tangible cultural properties (yfikei bunkazai), which include paintings and sculptures; intangible cultural properties (mukei bunkazai), comprising theater, music, and applied arts; folk cultural properties (minzoku bunkazai), among which
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became effective on August 29, 1950." 160 Through this legislation, "Japan possesses one of the most complete systems for the promotion of culture and the protection of indigenous cultural property extant in the world community, 161 and it has been heralded as a model for domestic regulation." 162 This was not, however, the first attempt to protect cultural properties in Japan. In fact, the national government began designating fine arts and crafts as cultural properties in 1897 pursuant to the Law for the Preservation of Ancient Shrines and Temples. 63 Additionally, the Fundamental Law for the Promotion of Culture and Arts was enacted on November 30, 2001164 for the purpose of providing a more comprehensive mechanism for promoting culture and the arts in Japan 65 The basic measures contained within the new Law
are the folk performing arts; monuments (kinenbutsu), a broad category that includes manmade and natural sites as well as plants and animals; and traditional building groups (dent6teki kenz6butsugun). On the national level, the provisions of the law are carried out by the Agency for Cultural Affairs within the Ministry of Education. The agency works with the Council for the Protection of Cultural Properties and the committees that annually select the nationally designated important cultural properties in each category). See also CulturalPropertiesLaw, in 2 KODANSHA ENCYCLOPEDIA OF JAPAN 52-53 (1st ed., 1983) (describing the five broad groups into which the 1950 Law divides cultural properties).
160 Geoffrey R. Scott, The Cultural Property Laws of Japan: Social, Political, and Legal Influences, 12 PAC. RIM L. & POL'Y J. 315 (2003) (detailing the development of the 1950 Law and its complex history including the influence of the Occupation of Japan by Allied Forces following the end of World War II).
161 Scott, supranote 9, at 312 (citing Halina Nie , LegislativeModels of Protection
of CulturalProperty,27 HASTINGS L.J. 1089, 1106 (1976)).
162 Scott, supranote 9 (citing Scott, supra note 160).
163 Scott, supranote 9, at 313.
164See Ministry of Education, Culture, Sports, Science and Technology ["MEXT"], Culture: Toward the Realization of an Emotionally Enriched Society Through Culture, http://www.mext.go.jp/english/org/fculture.htm (last visited Apr. 12, 2008) (a website including a factual discussion of the law, enforced beginning on December 7, 2001).
165 One of the ways that Japan has promoted the preservation of important cultural properties is through providing certain national tax advantages to individuals who support the basic policies. For example, beginning in 1970, a transfer of land that has been designated an important cultural property, historical site, place of scenic beauty, or natural monument has been awarded a income tax special deduction of up to Yen 20 million. Beginning in 1972, the transfer of an important cultural property (moveable property or a building) to the national or local government or to a specified independent administrative institution, such as a qualified museum, is exempt from income tax. Also beginning in 1972, the transfer of certain cultural property to similar groups also results in a reduction of capital gains tax on the transfer. Beginning in 1984, the inheritance tax attributed to passing an important cultural property was provided a deduction of 60% of the
U. Pa.J. In t'l. L.[Vol. 29:4
include the enhancement of cultural facilities, and the protection
and use of copyrights and neighboring rights.
Under the 1950 Law and its amendments, 166 the national
government may select and officially designate 167 Japan's most
significant cultural treasures. The act of designation imposes
restrictions upon the conservation and use of such tangible objects,
including their acquisition, protection, maintenance, alterations,
repairs, and exportation.168 The selection, designation, and
registration of specific cultural properties is made upon the
recommendation of an advisory panel labeled the Council for
Cultural Affairs and carried out by the Ministry of Education,
Culture, Sports, Science, and Technology ("MEXT") through the
Agency for Cultural Affairs. 169
Actual designation of "important cultural properties" and
"national treasures" is founded upon an informed judgment as to
the contribution a particular object makes to Japan's deep cultural
history. Rigorous criteria' 70 are applied in assessing the relative contribution of an object and for considering the selection of objects for inclusion on the registry. These include:
1.
Objects from various historical periods considered
important in the cultural history of Japan which showed excellence in their production;
2.
Objects that are considered especially significant as historical materials in the history of painting and sculpture of Japan;
assessed value. Beginning in 1998, certain enrolled artwork could be accepted as payment in kind of certain inheritance tax due and owing. 166 Bunkazai Hogo H6 [Law for the Protection of Cultural Properties], Law
No. 214 of 1950, availableat http://law.e-gov.go.jp/cgi-bin/idxselect.cgi?IDX_ OPT=3&H_NAME=&H_NAME_YOMI=%82%aO&H_N O_GENGO=S&H_NO_YE AR=25&H_NO_TYPE=2&HNONO=214&HFILENAME=S25HO214&HRYA KU=1&HCTG=1&HYOMIGUN=1&H_CTG_GUN=I, translatedin IndependentAdministrative Institution, National Research Institute for Cultural Properties, http://www.tobunken.go.jp/-kokusen/ENGLISH/DATA/Htmlfg/ japan/japan01.html.
167 Id. art. 27-56 (discussing important cultural properties, including designation, custody, protection, opening to the public, investigation, and miscellaneous provisions).
168 Id. art. 34-247.
169 Agency for Cultural Affairs, http://www.bunka.go.jp/english/ index.html (last visited Apr. 12, 2008).
170 Yoshiaki Shimizu, Japan in American Museums: But Which Japan?, 83 ART BULLETIN 123, 131 (2001).
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3.
Objects that display outstanding features (predominantly idiosyncrasies) in terms of subject matter, aesthetic quality, condition, and technique;
4.
Objects that exhibit stylistic features attributable to a unique author or authors, schools, or geographic regions;
5.
Objects of foreign production having significant bearing on Japanese cultural history (such as Chinese painting)' 71
In addition to this fundamental recognition, objects that are first classified as "important cultural properties" may also be considered for classification as a "national treasure" if they "are of especially high value from the viewpoint of world culture and which are the matchless treasures of the nation."172 As of April 2004, and as reported in the census report of the ministry of Culture, 10,120 tangible objects had been selected and designated as cultural properties, and of this number, 853 are also considered
"national treasures." In 1975, the 1950 Law was amended to
include the category of "groups of historic buildings." As of 2004, sixty-two districts in fifty-six municipalities had been classified as "important preservation districts" and 10,867 structures had been designated as historic buildings. 173
5.2. Japanand Significant InternationalEfforts
During the occupation of Japan by Allied forces pursuant to the Pottsdam Convention of 1945, little affirmative attention was given to repatriation of objects that had been removed by Japan from other countries. Rather, the concern was in stabilizing the political and cultural conditions of the country itself.174 In a news broadcast
171 Id. at 131.
172 Bunkazai Hogo H6 [Law for the Protection of Cultural Properties], Law No. 214 of 1950, art. 2(5)(2) available at http://law.e-gov.go.jp/cgi-bin/ idxselect.cgi?IDX_ OPT=3&H_NAME=&H_NAME_YOMI= %82%aO&H_NO_
GENGO=S&H_NO_YEAR=25&HNOTYPE=2&H_NO_NO=214&HFILENA
ME=S25HO214&H_RYAKU=l&H_CTG=1&HYOMI_GUN=1&HCTGGUN=1,
translated in Independent Administrative Institution, National Research Institute for Cultural Properties, http://www.tobunken.go.jp/-kokusen/ENGLISH/ DATA/Htmlfg/japan/japan0l.html.
173 Scott, supranote 9, at 313.
174 See Scott, supra note 160, at 352-54 (describing detailed Allied policies toward Japanese cultural objects which apparently did not consider objects being taken by Japan).
U. Pa.J. Int'l. L. [Vol 29:4
in May 1944, General Douglas MacArthur, Supreme Commander of Allied Powers (SCAP), opined:
I am in most serious disagreement even with the minority view on the replacement of cultural property lost or destroyed as a result of military action and occupation.. . . [such a position would] embitter the Japanese people toward us and render Japan vulnerable to ideological pressure and [be] a fertile field for subversive action. 175
5.2.1. 1965 Japan-KoreaTreaty of Basic Relations
The two decades following Korea's 1945 liberation 176 from Japanese control were punctuated by recriminations 77 and
175 MacIntyre, supra note 37.176 September 2, 1945, in the form of the Potsdam Proclamation. See, OFFICE
OF THE CHIEF OF NAVAL OPERATIONS, REPORT OF SURRENDER AND OCCUPATION OF JAPAN (1946), availableat http://stinet.dtic.mil/cgi-bin/GetTRDoc?AD= ADA438971&Location=U28&doc=GetTRDoc.pdf (describing the Allied efforts in
Japan as well as a history of the political issues in a recently unclassified report from the Commander in Chief of the U.S. Pacific Fleet).
177 Recriminations continue to this day, particularly with respect to the return of cultural assets and the treatment of the "comfort women" during the period of colonization.
The U.S. House of Representatives International Relations Committee criticized the Japanese imperialists' crime perpetrated against "comfort women" during the Pacific War, on Sept. 13. The Committee also adopted a unanimous resolution asking for the Japanese government's apology and promise not to repeat such an inhumane act. The resolution is now waiting for the historical voting for passage at the House of Representatives' plenary session.
The resolution says that the Japanese military took young women in other Asian countries by force to use them as sex slaves for their servicemen engaged in the war, pointing out that it was the most serious case of slave trade in the 20th century. It also criticizes the fact that history textbooks used in Japanese schools attempt to hide such an inhumane crime perpetrated by Japan during World War II, asking the Japanese government to accept responsibility concerning the issue of comfort women and educate the country's youth based on historic facts.
...The Japanese government and the country's rightist politicians are making all possible efforts to block the passage of the resolution in the House, as expected. The Japanese government has denied its responsibility in the issue and its political leaders have even tried to deny the existence of comfort women, making themselves the target of international criticism.
Japan Cornered Over Sex Slavery, KOREA HERALD, Apr. 26, 2007. Cf.Action Must Follow Words, KOREA HERALD, Apr. 30, 2007, (discussing Japanese apologies on the issue. "In an interview with Newsweek magazine last week, Japanese Prime
2008] SPOLIATION, CULTURAL PROPERTY, AND JAPAN 855
significant enmity.178 During the 1950s, South Korean President Syngman Rhee adopted a hostile posture in its relations with Japan, and the country even refused to seek Japan's assistance during the Korean Conflict. 179 Allegedly tired of hearing claims of injustice that had occurred during colonial times, Japanese representatives, including Premier Yoshida Shigeru, refused to meet with Korean representatives. 180 Following a military coup in Korea led by General Park Chung-Hee in 1961, perspectives began to change, and Korea began to aggressively pursue industrialization based upon the export-led model employed by Japan.'81 Park was reportedly eager for Japan's economic assistance in their efforts, 182 and in 1965, largely in response to the urging of the United States to bridge the considerable gap of disagreement in relations between South Korea and Japan, the two
Minister Shinzo Abe, on the question of Japanese military's sex slavery during World War II, said, 'As prime minister of Japan I need to apologize to them."').
178 See VICTOR D. CHA, ALIGNMENT DESPITE ANTAGONISM: THE UNITED STATES-KOREA-JAPAN SECURITY TRIANGLE 11 (1999) (describing Japan as replacing the United States as South Korea's "most critical source of trade and capital," resulting in chronic Korean trade deficits which Koreans blamed on Japan's protectionist policies).
179 See MARK E. MANYIN, NORTH KOREA-JAPAN RELATIONS: THE NORMALIZATION TALKS AND THE COMPENSATION/REPARATIONS ISSUE 1-6 (Congressional Research Service, 2001), availableat http://www.fcnl.org/pdfs/ 01junel3.nkjapan.pdf (detailing how a formally raised possibility that Japan would provide North Korea an economic assistance package was discussed at bilateral meetings between the nations held Aug. 21-24, 2000, and how North
Korea failed to respond to the offer).
180 CHA, supranote 178, at 11.
181 MANYIN, supranote 179, at 5.
182 The activities were not viewed favorably in much of Korea, but were
rather characterized as continued support of imperialistic Japan. During the treaty negotiations, protests, sit-ins, and rioting were common, much of it by students, and Ambassador Samuel Berger noted that Park's government was at risk of collapsing "through public turmoil, coup or internal divisions." Kil J. Yi, In Search of a Panacea:Japan-KoreaRapprochementandAmerica's "FarEastern Problems,"
71 PAC. HIST. REV. 633, 651 (2002) (describing a widely held view that the talks were nothing more than an attempt to revive Japan's suzerainty over Korea.). A comment in the newspaper Hanguk Ilbo on Jan. 5, 1965 stated:
Now, the Koreans are worried that history may repeat itself once again. Don't we Koreans see the U.S. again trying to turn Korea over to Japan? Will Koreans trust the U.S. any longer? ...We can say one thing: 'Never call in a robber to drive out a burglar.'
J. Mark Mobius, The Japan-KoreaNormalizationProcessand KoreanAnti-Americanism, 6 ASIAN SURVEY 241, 241 (1966).
U. Pa.J. Int'l. L. [Vol. 29:4
countries signed the Japan-Korea Treaty of Basic Relations.183 It is important to note that the agreement contained no reference to an apology by Japan for claimed atrocities, and the terms were generally characterized as providing assistance to South Korea in its efforts to modernize. The specific terms of the agreement, however, not only addressed economic considerations, 184 but also purported to consider the issue of the status of cultural assets claimed to have been taken from Korea to Japan during the colonial period. 185 In accord with the treaty, the economic
183 A copy, in Japanese, of the general treaty, and the various Agreements, protocols, concords, document exchanges, correspondences and colloquy records can be found at: http://www.ioc.u-tokyo.ac.jp/-worldjpn/documents/indices/ JPKR/index.html (unverified translation availableat http://en.wikisource.org/ wiki/Treaty onBasicRelationsbetweenJapanandtheRepublic of Korea). An English translation of the Agreement Concerning Cultural Property and Exchange can be found infra Appendix 1. The treaty was signed on August 22, 1965. It included one Treaty on Basic Relationship between Japan and Republic of Korea, four Agreements (concerning fishery, property claims and economic cooperation, the legal status of Korea and the treatment of Koreans residing in Japan, and cultural property and exchange),
two protocols, five concords, nine document exchanges, two correspondences and
two colloquy records. The agreement had what has been referenced as two primary philosophical pillars: The first was Japan's recognition of the legitimacy of South Korea, which translated into indirectly denying the legality of North Korea. This recognition placed a barrier against rapprochement between Tokyo and communist capitals: As the leftists in Japan feared, Japan had cast "her lot irrevocably with America." The second pillar was the settlement of the "Problems Concerning Property and Claims and Economic Cooperation .... Yi, supra note 177, at 656 (citations omitted). See also Victor D. Cha, Hate, Power, and Identity in Japan-KoreaSecurity: Towards a Synthetic Material-Ideational Analytical Framework, 54 AUsTL. J.OF INT'L AFF. 309 (2000) (describing current Japan-Korea relations and arguing that while "historical antagonism and enmity" serve as the foundation of this bilateral relationship, positive transformation is possible). 184 Manyin details the components of the Japanese settlement:
As part of the final settlement, Japan agreed to provide South Korea with
a total sum of $800 million, which consisted of: a) an outright grant of
$300 million, to be distributed over a 10-year period; b) a $200 million
loan to be distributed over a 10-year period and repaid over a 20-year
period at 3.5% interest; c) $300 million in private credits over a 10-year
period from Japanese banks and financial institutions.
Manyin, supra note 179, at 5 (citations omitted).
185 The Agreement on Cultural Property and Exchange (also referenced as the Agreement on Art Objects and Cultural Cooperation) considered the status of objects allegedly misappropriated by Japan during the period of colonization. See Trends and Topics: The Tempestuous Treaty, 13 JAPAN QUARTERLY 4 (1966). For a translation of the Agreement, see Appendix I.
2008] SPOLIATION, CULTURAL PROPERTY,AND JAPAN 857
assistance provided by Japan was to be consideration for Korea abandoning any claims it might have for the retrieval of cultural assets as well as other activities during the colonial period. 86 To many Koreans, the agreement was a "sellout": some political parties boycotted the ratification of the activities in the National Assembly, protests erupted in Korea, and Park imposed martial law to quiet the country.187
Reports indicate that Japan did, however, "return" 1,321188 cultural objects at the time the agreement was signed, including celadon porcelain and old documents. 189 Researchers believe, however, that numerous Korean cultural objects including the
fifteenth-century painting Mongyudowondo (Dream of Playing in a Peach Orchard), numerous Buddhist statues, and other objects remain in Japan' 90 and Korea has been seeking repatriation of the objects through numerous vehicles. Japan, on the other hand, has taken the legal position that the original transfer of cultural objects to Japan was lawful, and the 1965 treaty concluded discussions concerning the return of any cultural objects removed prior to and during the colonial period. As recently summarized by Daisuke Matsunaga in the context of sending certain cultural objects to Korea, a deputy press secretary for Japan's Ministry of Foreign Affairs stated: "We agree to disagree over the nature of the returns ....[O]ur position is that it is out of friendship and goodwill, we are giving things back." 191
5.2.2. The JapaneseUNESCO Fundsin Trustfor the Preservation of World CulturalHeritage
Japan has, however, developed an impressive record in the area of protecting and preserving cultural heritage, both at home and in the international arena. On May 4, 1988, Prime Minister Noboru Takeshita announced the International Cooperative Initiative of Japan at Lord Mayor's luncheon held in London. The
186 Cf. South Korea to Continue to Discuss Diplomatic Solutions for Japanese Crimes, YONHAP NEWS AGENCY (S. Korea), Aug. 26, 2005 (detailing the ongoing
talks regarding compensations for the Japanese enslavement of Korean women.).
187 Manyin, supranote 179, at 5.
188 The actual number of objects has varied. Maclntyre indicates that 1,326 objects were returned including 852 books and 438 pieces of pottery. MacIntyre, supra note 37.
189 Yamamori, supranote 37.
190 See Kakuchi, supra note 49.
191Maclntyre, supranote 37.
U. Pa. 1.Int'l. L.[Vol. 29:4
initiative was designed primarily to showcase the efforts of Japan innumerous and diverse sectors, and contained three pillars:
1.
Strengthening the concept of "cooperation for peace through non-military means;"
2.
Strengthening international cultural exchange; and
3.
Providing development assistance to third world countries. 192
As part of this program in 1989, Japan created the Japanese Funds in Trust Program under the auspices of UNESCO. The purpose of the fund is to support cultural property restoration, preservation, and conservations around the world. By 2004, the total contribution to the fund had been $50 million, and the fund had supported restoration and conservation activities in Angkor, Cambodia; the stabilization and restoration activities at Bamiyan in Afghanistan; and a non-exhaustive list of other projects around the world.193
Consistent with the terms of the Fund, in August 2000, Japan joined with South Korea to give North Korea $100,000 to register a group of Goguryeo tombs located near Pyongyang on the World Heritage list.194
192 See Outlineof Statements Made by Japan's PrimeMinister Noburo Takeshita at Lord Mayor's Luncheon, BUSINESS WIRE, May 13, 1988 (describing the efforts of Japan to strengthen cooperative relations with Europe).
193 See UNESCO, Japanese Funds-in-Trust for the Preservation of World Culture, http://portal.unesco.org/culture/en/ev.php-URLID=2210&URL_ DO=DOTOPIC&URLSECTION=201.html (detailing a non-exhaustive list of Japanese-funded projects throughout the world.) (last visited Apr. 13, 2008).
194 See Japan, South Korea to Provide Cash for North Korea Heritage Listing, KYODO NEWS SERVICE, Aug. 15, 2000. This and other activities have been viewed as part of a course of action through which Japan has been making efforts to normalize relations with North Korea. It was also deemed part of a mutual strategy, termed a need for "liquidation of the past," to mask mutual demands. The events of the 1970s and 1980s, during which it is claimed that Korea kidnapped Japanese citizens, cloud the discussions, as does North and South Korea's apparent need for recriminations for past offenses committed against their populations. In the talks, North Korea, seemed to want an apology from Japan for the events of the colonization, further compensation for cultural assets claimed to have been looted, and legal status granted to North Koreans resident in Japan. See
F. J. Khergamvala, Japan Mending Ties With N. Korea, HINDU, Aug. 26, 2000,availableat http://www.hinduonnet.com/2000/08/26/stories/03260004.htm (briefly describing the efforts by the Japanese government tocompensate North Korea for the Japanese occupation).
All cases of vandalism and looting of cultural properties committed by
Japan in Korea in the past were the worst crimes against civilization and
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5.2.3. UNESCO Convention Concerningthe Protectionof the World CultureandNaturalHeritage
A convention of significant import in the international protection of culture is The UNESCO Convention Concerning the Protection of the World Culture and Natural Heritage. It was adopted in 1972, the United States ratified the Convention in 1973, and Japan acceded to its terms in 1992. Initial interest in the treaty was precipitated by concerns over the building of the Aswan High Dam in Egypt in 1959, the construction of which would have purportedly led to the complete and permanent loss of the
humanity which could be committed only by the most despicable, cruel and barbarous aggressors and imperialists.
All Koreans in the North and the South and overseas should wage a more vigorous struggle to retrieve the looted cultural properties from foreign forces, aware that it is an important task facing the nation to defend its dignity and sovereignty and preserve its history, culture and national character.
The US imperialists plundered Korea of many cultural treasures. They and the Japanese reactionaries should clearly understand the will of the Korean nation, apologize for their aggression and plunder perpetrated in Korea and unconditionally return all of the looted cultural treasures, the commentary demands.
North Korean Paper Urges Japan Apology for "CulturalVandalism," BBC MONITORING ASIA PACIFIC, (trans. KCNA) July 6, 2006.
[D]ue to the Japanese imperialists' brigandish annexation of territory and colonial fascist rule, the Korean people suffered immeasurable misfortune and pain and Korea was far removed from modem
civilization ....
[A]t least 200,000 Korean women were taken away as "comfort women" for the imperial Japanese army and forced to provide sex to it .... During their occupation of Korea the Japanese imperialists savagely plundered it of its rich resources and indiscriminately vandalized and looted its precious cultural treasures.
Not content with this, they took away even brass bowls and brass spoons and chopsticks used by families of Korea, to say nothing of brass candlesticks and brass wine cups on tables used during memorial services and ornamental hairpins of women. The Japanese imperialists had long kept an eye to the cultural treasures of Korea. So as soon as they occupied it, they came to Korea like a pack of wolves and ruthlessly looted those treasures and shipped them to Japan to make them their
own properties.
North Korean Article on "Shuddering Atrocities" Committed by Japan,NORTH KOREAN NEWS AGENCY, Aug, 29, 2004.
U. Pa. J. Int'l . L.[Vol. 29:4
culturally important Abu Simbel Temples. At the specific request of Egypt and the Sudan, UNESCO undertook a campaign to safeguard the cultural heritage of the area. This effort resulted in the eventual dismantling and removal of the Abu Simbel and Philae temples. As a consequence of this attention, sentiment to protect other valuable cultural assets from what might be considered the ravaging consequences of advancing technology awakened in the conscience of the world community. The original idea to link the preservation of cultural and natural heritage was reportedly born at a 1965 White House Conference in the United States where a proposal was proffered to protect "the world's superb natural and scenic areas and historic sites for the present and the future of the entire world citizenry." 195 This theme was carried forward by the International Union for the Conservation of Nature and was contained in a 1968 proposal by its members. 196 The two documents were eventually merged into the Convention.
5.2.4. Customs and the Control of Exports and Imports
5.2.4.1. The Development of GeneralJapaneseCustoms Practice
During the period of Japanese isolation that commenced around 1639 with the expulsion of Europeans from Japan and continued until the mid-nineteenth century, Japan's external relations and trade had generally been limited to China and the Netherlands, and the port that had been predominantly used for these limited purposes was located in Nagasaki. 97 Under pressure from Commodore Perry, Japan signed a "Treaty of Peace and
195 U.N. Educ., Scientific, and Cultural Org., World Heritage Ctr., Brief History (quoting Comm. on Natural Res., White House Conference on Int'l Cooperation), http://whc.unesco.org/pg.cfm?cid=169 (last visited Apr. 5, 2008).
196 See id. (describing the history of the preservation of cultural heritage).
197 Ieyasu, the first Shogun of the Tokugawa Era assumed power in 1603. The Shogunate banned Christianity in 1612, and because it had proved difficult to separate commerce from spiritual activity, all Europeans, except the Dutch, were expelled from Japan in 1639. This commenced approximately 200 years of isolation of Japan from the West. SANSOM, Japan: A Short Cultural History, supra note 79, at 396-97; Scott, The Cultural Property Laws of Japan: Social, Politicaland Legal Influences, supra note 160, 319-21 (describing steps Japan took to isolate itself from the West in the sixteenth and seventeenth centuries, with the exception of the Dutch in the port of Nagasaki); see also Japan Ministry of Finance, Customs and Tariff Bureau, History of Japan Customs, http://www.customs.go.jp/ english/zeikan/historye.htm (last visited Apr. 13, 2008) (describing the history of Japanese customs beginning with the Tokugawa Shogunate).
2008] SPOLIATION, CULTURAL PROPERTY, AND JAPAN 861
Amity" between the Emperor of Japan and the United States in 1854, and in accord, the ports of Shimoda and Hakodate were opened. In the years that followed, the Treaty of Commerce with the United States was signed, 198 as were similar treaties with the Netherlands, Russia, the United Kingdom and France. As a consequence of this progressive activity, the additional ports of Nagasaki, Yokohama, Hyogo, Osaka and Niigata were opened to international trade.
Each of the original treaties addressed the subject of tariffs; however, amendments to the agreements in 1866, which were essentially forced upon Japan as a condition of continued commerce, resulted in a reduction in the rates for importation of goods to a modest five percent ad valorem. This change placed considerable economic stress on Japan, and during the early and middle years of the Meiji period, a dominant diplomatic goal was to negotiate more favorable terms of trade with other countries. A direct consequence of this situation was a felt need of Japan to open commerce with countries in its region such as Korea.199
During the years following the Sino-Japanese and Russo-Japanese wars, the Japanese trade initiative greatly expanded. In 1894, Japan concluded a new Treaty of Commerce and Navigation with the United Kingdom that revised and improved the theretofore oppressive tariff structures resulting in improved trade relations with other countries. In or about 1898, Japan's customs laws were again codified to reflect the new treaty obligations. In 1899, a new cadre of intellectual property laws was also promulgated, as required by the various treaties, and in 1911, Japan signed the Treaty of Commerce and Navigation with the
United States, achieving a degree of customs autonomy.200
Trade and the Japanese economy continued to improve from the Taisho era (1912) through the economic boom occasioned by World War I, to the early Showa era (1930); during this period the customs system was again reorganized. Beginning in 1931, however, international trade in Japan began to feel the adverse
198 See Scott, The Cultural Property Laws of Japan: Social, Political and Legal Influences, supra note 160, at 322-24 (chronicling American diplomatic relations with Japan in the 1850's).
199See SETH, supra note 104, at 222-23 (discussing Japan's motives in composing a plan to exploit its proximity and relationship with Korea). In some ways, the attitude that Japan displayed toward Korea was a reflection of the attitude that certain Western nations displayed to Japan.
200 See HIROSHI ODA, JAPANESE LAW (2d ed. 1999).
U. Pa. ]. Int'l . L. [Vol. 29:4
affects of events in Asia such as the Manchurian Incident of 1931,
the North China Incident of 1939, and the growing hostilities in
Europe. In 1939, and as a result of Japanese aggression in China,
the United States renounced the 1911 Treaty with Japan. In 1940, President Roosevelt imposed a partial embargo on gasoline and scrap metal, both of which were required by Japan in its then current military effort in Asia. Japan responded by accelerating aggressions in northern China, and the U.S. again responded by adding additional subjects to the list of the embargoed items. The cycle of reciprocal retaliation continued, and in July 1941, Japan expanded its aggressions into southern China. On July 25 the United States froze all Japanese assets located in the U.S. and on August 1, it imposed a complete oil embargo on Japan.201 Finally, on November 26, 1941, in what is referenced as the "Hull Note," the U.S. demanded that Japan withdraw from its alliance with Germany and Italy and remove its forces from China and Indo-China. Most particularly, Japan feared the loss of national security if it should capitulate to American demands: it believed that withdrawal from Manchuria would jeopardize its interests in Korea, a country it had colonized with the support of the international community. Believing that it had no political choice, Japan attacked Pearl Harbor on December 7, 1941. Thereafter, Japan's trade was effectively limited to Southern Asia, and as a result, customs activities ceased to function entirely in 1943.202
The Second World War in the Asian Theatre was concluded with the Potsdam Declaration of 1945. To initiate reconstruction and re-education, the Allied forces recommended five major reforms, including the democratization of the economy.2 3 In 1946 and the years of occupation that followed, the customs service was reconstituted under the influence of the West. In 1949, a new Foreign Exchange and Foreign Trade Control Law 204 was
201 See generally ROBERT SMITH THOMPSON, EMPIRES ON THE PACIFIC: WORLD WAR II AND THE STRUGGLE FOR THE MASTERY OF ASIA 75-98 (2001) (describing how escalated economic sanctions paved the way for the Pearl Harbor attacks); Yuichi Arima, The Way to Pearl Harbor: US vs Japan (Dec. 2003), http://www.american.edu/TED/ice/japan-oil.htm (last visited Apr. 5, 2008) (comprehensively detailing the conflict and negotiations between the U.S. and
Japan leading up to the war).
202 Japan Ministry of Finance, supra note 197.
203 See ODA, supra note 200, at 29.
204 Gaikoku Kawase oyobi Gaikoku Boeki Ho [Foreign Exchange and Foreign Trade Control Law], Law. No. 228 of 1949, translatedin http://www.cas.go.jp/
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promulgated that was designed to stabilize Japan's currency and to promote the development of its economy. Eventually, in 1951, Japan signed the Peace Treaty with Allied nations, and the occupation was officially terminated.
In the greater global arena, Japan in 1955 acceded to the General Agreement of Tariffs and Trade, and in 1961, it undertook a comprehensive review of its tariff structure and adopted the Customs Cooperation Council Nomenclature ("CCCN") and its classification structure. 20 5 Japan also acceded to the Nomenclature Convention of the Customs Cooperation Council ("CCC") in 1966 and to the Valuation Convention ("CCCV") in 1972.206
Trade continued to flourish for Japan between 1973 and 1979, and various agreements were concluded which were consistent with the Tokyo Round of the Multilateral Trade Negotiations. Consistent with these new obligations, Japan withdrew from the CCCV in 1980,207 and substantially amended the Foreign Exchange and Trade Control Law ("FETCL"). The amended law stated that foreign exchange, foreign trade, and capital transactions, were to be essentially free of regulation, and it was this change that is said to have laid the foundation for the internationalization of Japan's
208
economy.
In the years that followed, numerous disputes arose regarding Japan's export practices, particularly in the areas of automobiles, textiles, steel, and semi-conductors, and the structure of its entire economic system came under question. Claims were made that Japan had maintained a competitive edge only by relying upon unfair trade practices. 20 9 In 1988, the International Convention on Harmonized Commodity Description and Coding System 210 came into force in Japan, 211 and in March of that year, Japan withdrew
jp/seisaku/hourei/data/FTA.pdf (unofficial translation by the Japanese government).
205 Japan Ministry of Finance, supranote 197.
206 Id.
207 Id.
208 See ODA, supranote 200, at 31.
209 See ODA, supra note 200, at 31-32 (describing criticisms of allegedly unfair Japanese trade practices in the 1970s and 1980s).
210 Tariff Heading 9700 is essentially the same as the U.S. version referenced infra note 210. One interesting exception is that it lacks Section 9706 Antiquities of an Age Exceeding One Hundred Years, availableat http://hotdocs.usitc.gov/ docs/tata/hts/bychapter/0800C97.pdf.
211 Japan Ministry of Finance, supra note 197. The United States also ratified the International Convention on the Harmonized Commodity Description and
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from the CCCN. 212 The United States and Japan engaged in the Structural Impediments Initiatives ("SII") talks in 1989 and 1990, which led to the promulgation of various additional "corrective" Laws. 213 As a result of other substantial complaints in the world community that Japan was inhibiting certain countries from entering Japan's domestic economy, the Japanese government launched a program of deregulation in 1995. One of the most heavily regulated areas was that of financial investment and foreign trade. As a result, the FETCL was again amended in 1997, and to reflect the substantive changes, the word "control" was cosmetically eliminated from its title. The current Japanese law on customs and trade covers the following subjects: "(1) payments, (2) capital transactions, (3) direct outward investment, (4) service trade, (5) direct inward investment, and (6) foreign trade." 214 It is
Coding System, and as of 1988 objects are classified according to the Harmonized Tariff Schedule. United States International Trade Commission [USITC], Tariff Information Center, http://www.usitc.gov/tata/index.htm (last visited Apr. 13, 2008). Art and antiquities are addressed in Section XXI, Chapter 97, Works of Art, Collectors' Pieces and Antiques, and usually are admitted free of duty. USITC, HARMONIZED TARIFF SCHEDULE OF THE UNITED STATES (2008) REVISION 1, ch. 97, available at http://www.usitc.gov/tata/hts/bychapter/index.htm. Prior to 1988, the Tariff Act of 1930 applied, and that act was amended in 1959 to simplify the classification of objects as works of art. The U.S. is also a signatory to various treaties and conventions which specifically consider treatment of cultural property.
In the Harmonized Tariff Schedule of the United States (HTS), chapters 1
through 97 cover all goods in trade and incorporate in the tariff
nomenclature the internationally adopted Harmonized Commodity
Description and Coding System through the 6-digit level of product
description. Subordinate 8-digit product subdivisions, either enacted by
Congress or proclaimed by the President, allow more narrowly
applicable duty rates; 10-digit administrative statistical reporting
numbers provide data of national interest. Chapters 98 and 99 contain
special U.S. classifications and temporary rate provisions, respectively.
The HTS replaced the Tariff Schedules of the United States (TSUS)
effective January 1, 1989.
Asia Pacific Economic Cooperation, United States of America Economy Information, http://www.apectariff.org/tdb.cgi/FF3235/coldefus.htm (last visited Apr. 13, 2008).
212 Japan Ministry of Finance, supranote 197.
213 See Joint Report on Structural Impediments Initiative, U.S.-Japan, June 28, 1990, availableat http://www.mac.doc.gov/japan/market-opening/SII%20Joint% 20Report.pdf (providing the final report on the SII talks, documenting a commitment by both countries to reduce their respective external imbalances, complemented by economic policy coordination efforts, with the hope that their actions lead to more efficient, open, and competitive markets).
214 ODA, supranote 200, at 437-38.
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FETCL that is implicated in the import and export constraints imposed by the various cultural property laws of Japan.
5.2.4.2. Specific Customs Controls Imposed upon Cultural Properties-Domestic Law
In order to effectively secure the cultural property located in Japan, Article 44 of the 1950 Law prohibits the export of tangible cultural property that has been designated as important or as a
"national treasure." 21s If a person desires to export designated
cultural property, he or she must seek the permission of the Commissioner of the Agency for Cultural Affairs. The Agency will consider such a request in accord with its ordinance. In addition, any person desiring to sell or assign an important cultural property or an important folk-cultural property has an obligation to notify the Commissioner of the Agency for Cultural Affairs and provide certain specified information, including the sale price. In the latter event, and within thirty days of the notification, the Commissioner may purchase the object for Japan for the agreed upon price. 216 As a matter of custom, museum curators and art dealers refrain from trade in registered objects without having first approached the Agency for advice and consent.217
If an individual fails to give notice under Article 46 of an intention to sell or transfer, he or she may be subject to a civil fine. 218 In addition, should any person attempt to export an item of
215 Bunkazai Hogo H6 [Law for the Protection of Cultural Properties], Law No. 214 of 1950, art. 44, available at http://aw.e-gov.go.jp/cgi-bin/idxselect.cgi?IDXOPT=3&H_NAME=&HNAME_YOMI=%82%a0&H_NO_ GENGO=S&HNOYEAR=25&HNOTYPE=2&HNONO=214&HFILENA ME=S25HO214&HRYAKU=1&HCTG=1&HYOMIGUN=1&HCTG_.GUN=I, translated in Independent Administrative Institution, National Research Institute for Cultural Properties, http://www.tobunken.go.jp/-kokusen/ENGLISH/
DATA/Htrnlfg/japan/japan01.html.
216 Id. arts. 44, 46.
217 See Washizuka Hiromitsu, Dir., Nara Nat'l Museum, Remarks, Republic of
Korea, Cultural Property Forum: The Export Policies of China, South Korea, and Japan, Asia Society, at 6 (Apr. 9, 2003), http://www.asiasource.org/ culturalheritage/culturalproperty.cfm (providing a transcript of conference panel discussions including representatives of cultural institutions in Japan, Korea and China, addressing basic principles and organizations of cultural property protection in the three countries).
218 Bunkazai Hogo H6 [Law for the Protection of Cultural Properties], Law No. 214 of 1950, art. 10, available at http://aw.e-gov.go.jp/cgi-bin/idxselect.cgi?IDXOPT=3&HNAME=&H_NAMEYOMI= %82%a0&H_NO_ GENGO=S&H_NO_YEAR=25&HNOTYPE=2&H_NO_NO=214&H-FILENA
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cultural property in contravention of Article 44, he or she may be subject to imprisonment or fine. 219 However, there is no record of any prosecutions for violation of Article 44.220
5.2.4.3. Import Controls -The UNESCO Convention
In 1970, the General Conference of UNESCO adopted the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. 221 As of November 2007, there were 115 countries that had either ratified or accepted the UNESCO Convention; ten of which had also presented notifications of succession. The United States accepted it in February of 1983 and Japan accepted in September of 2002.222
One of the features of the 1970 UNESCO convention that has proved particularly troublesome to potential signatories is the treatment of bona fide purchasers of stolen cultural objects. Article 7(b)(ii) provides that a State requesting return of an illegally or
ME=S25HO214&HRYAKU=1&HCTG=1&HYOMIGUN=1&HCTGGUN=1, translated in Independent Administrative Institution, National Research Institute for Cultural Properties, http://www.tobunken.go.jp/-kokusen/ENGLISH/ DATA/Htmlfg/japan/japan0l.html (stipulating that any person who has failed to make an offer of sale to the State, transfers the property to a party other than the State, or has made false statements in the offer of sale is subject to a fine).
219 Id. art. 106 (stipulating that any person who exports cultural property without permission from the Commissioner of the Agency for Cultural Affairs may be subject to imprisonment or fine).
220 See Interview with Mr. Sato, Hiroshi Hashida, a Unit Chief at the Agency for Cultural Affairs, Traditional Culture Division, and Shegeyuki Miyato of the Nat'l Inst. for Cultural Props., in Tokyo, Japan (July 26, 2005) (notes on file with author). See also Washizuka Hiromitsu, Remarks, supranote 217, at 11. 221 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property, Nov. 14, 1970, availableathttp://unesdoc.unesco.org/images/0011/001140/ 114046e.pdf#page=130 [hereinafter UNESCO Cultural Property Convention]. 222 See UNESCO, Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Ratification list, Nov. 14, 1970, http://erc.unesco.org/cp/convention.asp?KO= 13039&language=E (last visited Apr. 10, 2008) (listing ratifications to the convention). The United States promulgated implementing legislation in 1983, Pub. L. No. 97-446, 96 Stat. 2329, and amended it in 1987, Pub. L. No. 100-204, 101
Stat. 1331. Japan accepted the Convention in September 2002 and promulgated implementing legislation on December 9 of that year. See Law Concerning Controls on the Illicit Export and Import of Cultural Property, available at
www.bunka.go.jp/english/law.html (setting forth measures to ensure implementation of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property) [hereinafter Japan Implementing Legislation].
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illicitly misappropriated cultural property must "pay just compensation to an innocent purchaser or to a person who has valid title.. "223 Unfortunately, disparate national policies, founded upon cultural dispositions which relate to defining ownership and the stability of title to property for commercial purposes, lack the uniformity of perspective required to carry out this charge. One of the most significant legal determinants found to resonate within the private disputes and legal accommodations in this subject area has been the disparate treatment of bona fide purchasers under private law regimes in certain civil law countries such as Japan 224 and Switzerland, 225 and that of select common law countries such as the United States. In general, civil law countries
223 UNESCO Cultural Property Convention, supra note 221, art. 7(b)(ii). Compare with the Protocol for the Protection of Cultural Property in the Event of Armed Conflict [the Hague Protocol], art. 1, para. 4, May 4, 1954, 249 U.N.T.S. 215, which provides that a contracting party whose duty it is to prevent the export of cultural property from a territory that it occupies, "shall pay an indemnity to the
holders in good faith of any cultural property which has been returned ...
224 See discussion of Japan's Civil Code infra note 243.
225 The risk of loss in civil law countries is generally upon the owner of goods
transferred to a BFP. Article 3 of the Swiss Civil Code, for example, states: "(1) Good faith is presumed when it is a legal condition for the existence or the effect of a right. (2) No one can claim being in good faith if it is incompatible with the attention that he should have shown in the given circumstances." Schweizerisches Zivilgesetzbuch [ZGB], Code civil Suisse [Cc], Codice civile swizzero [Cc] [Civil Code] Dec. 10, 1907, SR 210, RS 210, art. 3 (Switz.), quoted in Barbara Hoffman, Introduction to Parts II and III: Cultural Rights, CulturalProperty,
and International Trade, in ART AND CULTURAL HERITAGE: LAW, POLICY, AND PRACTICE 90 n.8 (Barbara Hoffman ed., 2006) (citing the Swiss Civil Code as support for the observation that most civil law systems grant protection to the good faith possessor).
As a consequence of this view of bona fide purchasers, Switzerland has been noted as a haven for stolen cultural objects. Thus, the court in Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg had to address the conflict of law claim raised by the defendants that Swiss law applied and gave them title to the mosaics in question. 917 F.2d 278, 286-87 (7th Cir. 1990).
Effective in June 2005 the International Transfer of Cultural Property/ Cultural Property Transfer Act deems importation of cultural property into Switzerland illegal only if it violates the terms of a bilateral treaty. Property is illegally imported if it is deemed of significant importance to the heritage of the country from which it was exported. Under the UNIDROIT Convention, a BFP possessor is entitled to retain possession, however, until he has received compensation. See Michele Kunitz, Comment, Switzerland & the International Trade in Art and Antiquities, 21 Nw. J.INT'L L. & Bus. 519, 531 (2001) (discussing Switzerland's role in the illicit antiquities trade and possible ramifications from Swiss law in this are). See also Korean Civil Code Section 249 (stating, consistent with the civil law tradition, that "[slomeone who has acquired (personal) property in good faith without fault becomes the rightful owner of that property even if the transferor is not the rightful owner of the property") (translation on file with author).
U. Pa.J. Int'l. L. [Vol. 29:4
more readily recognize repose in a bona fide purchaser. To put it
simply, possession often equals title. On the other hand, a
fundamental principle of common law generally holds that no one
can acquire good title from a thief.226
These differences have created what has been deemed a
significant transactional loophole in certain civil law countries
through which illegal traffickers could pass misappropriated
cultural property. 227 States seem discomfited by attempts to effect
public law decisions to repatriate property to countries from which
it was illicitly removed at the expense of private law principles. 228
In 1984, and in recognition of this important subject, UNESCO asked UNIDROIT to address the issue. The final text of the resulting document, The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, was adopted in Rome at the Diplomatic Conference on June 24, 1995, and it entered into force on January 7, 1998.229 There are currently twenty-nine contracting parties, however, neither the United States nor Japan are among the members. 230
226 An exception to this can be found in the operation of Statutes of Limitation and/or Statutes of Repose. See O'Keeffe v. Snyder, 416 A.2d 862, 867
(N.J. 1980) (noting that if property was stolen, proof of theft would advance the original owner's right to possession, absent expiration of the statute of limitations). See also WILLIAM BLACKSTONE, 3 COMMENTARIES ON THE LAWS OF ENGLAND 145 (1st ed. 1765-69) (describing remedies to personal property); U.C.C. §§ 1-301; 1-201(32), (33) and § 2-403(1) (granting a good faith purchaser good title, even when the transferor had voidable title) and U.C.C. § 2-403(2) (permitting the merchant to transfer title to a bona fide purchaser if the person from whom the goods was wrongfully appropriated entrusted the goods to the merchant knowing that the merchant dealt in the sale of such items).
227 See, e.g., Lyndel V. Prott, UNESCO and UNIDROIT: A PartnershipAgainst Trafficking in Cultural Objects, 1 UNIFORM L. REV. 59, 67 (1996), available at http://unesdoc.unesco.org/images/0010/001050/105002E.pdf#search='unesco%
20unidroit (noting that under Article 2279 of the French Civil Code, a bonafide purchaser does not have to return property after a period of three years, while the Italian Civil Code grants this status immediately).
228 See, e.g., id. at 60 (noting that a 1985 draft of the Convention on Offenses Relating to Works of Art originally included a provision that one could gain restitution of a work if it had been criminally misappropriated except where a third party had acquired an interest in the work in good faith). 229 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects,
adoptedon June 24, 1995, 34 I.L.M. 1322, availableathttp://www.unidroit.org/ english/conventions/1995culturalproperty/1 995culturalproperty-e.htm.
230 See generally http://www.unidroit.org/english/implement/i-95.pdf (last visited Apr. 10, 2008) (listing the contracting parties, including Greece, which became the most recent contracting party on July 19, 2007).
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The general definitions of cultural property in the both the UNESCO and the UNIDROIT conventions were intentionally kept compatible 231 to provide assurance to members of the UNESCO Convention that it would continue to be effective. Furthermore, the categories of property deemed cultural and thus covered by the conventions are essentially identical.232 Unlike UNESCO, however, UNIDROIT is largely dependent upon private rather than governmental action. Consequently, and in contrast to UNESCO, it contains no direction that the property be designated as cultural property by a government party to be covered, 233 nor is any
"connections test" articulated.
UNIDROIT does address the issue of the bona fide purchase of stolen cultural property, and a decision was made by its drafters to condition restitution of cultural property upon payment of fair and
231 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, supra note 228, arts. 1-2, available at http://www.unidroit.org/english/ conventions/1995culturalproperty/1995culturalproperty-e.htm (applying international claims to restitution of stolen cultural objects and the return of illegally exported cultural objects, and defining cultural objects, which include objects of "importance for archaeology, prehistory, literature, art, or science").
232 It is interesting to note that the definition of cultural property in the Hague Protocol is more general. The 1954 Hague Convention again addressed the plight of cultural property during armed conflict and for the first time included a definition of the term. It states in Article 1(a) that cultural property includes:
[M]ovable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above.
Convention for the Protection of Cultural Property in the Event of Armed Conflict, art. 1(a), May 4, 1954, 249 U.N.T.S. 215. The Convention also expanded coverage from prior agreements to all armed conflict not just declared wars, and it also created an international register of Cultural Properties Under Special Protection. It requires signatory parties to protect cultural property within their own territories as well as in territories of other signatories from pillage and theft, and among other acts, it expressly prohibits the seizure of such properties as trophies. As a concession to nationalism, military necessity is made an exception to the obligations of the treaty. See also id. art. 1(b)-(c) (defining "cultural property," irrespective of ownership, to include buildings such as museums, libraries, archives, and centers containing monuments).
233 See UNESCO Cultural Property Convention, supra note 221, art. 1 (defining "cultural property" as property which has been "specifically designated" by a State).
870 U. Pa.J. Int'l . L. [Vol. 29:4
reasonable compensation by the victim to the successive holder. 234 As a result, the convention continues to reflect a cultural bias in favor of a civil law tradition. Consequently, and not withstanding its noble goals, certain civil law and common law countries including Japan and the United States have not yet chosen to become signatories.
The UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property was, however, ratified by the Japanese diet in June 2002, and implementing legislation was passed on December 9 of that year.235 This watershed was heralded by then UNESCO Director-General Koichiro Matsuura as an important step in protecting cultural property in the world community. 236 The legislation effectuates select aspects of the Convention 237 that constrain both the importation and exportation of cultural property but only insofar as that property has been stolen.238 Of extremely important note, however, is that the law has only prospective effect. It does not apply to property lost or stolen prior to promulgation of the law, 239 and consequently, claims of spoliation that occurred in prior decades, much less prior centuries, are not remediable through the Convention.
234 The UNIDROIT Convention provides procedures for the victim's restitution to the good faith possessor. See supra note 220, art. 4 (providing procedures for the victim's restitution to the good faith possessor). See infra note
238 (describing the treatment of bonafide purchasers in the United States and Japan, in contrast to treatment under the UNIDROIT Convention). 235 Japan Implementing Legislation, supranote 222.
236 Press Release, U.N. Educational, Scientific and Cultural Organization, UNESCO Calls for Universal Ratification of the 1970 Convention, Following the Example Set by Key Art Market Countries, No. 2002-60 (Sept. 9, 2002), availableat http://www.unesco.org/bpi/eng/unescopress/2002/02-64e.shtml ("'The ratification of countries like Great Britain, Japan, and Switzerland is fundamental, given their leading role on the world art market. I would further call on all States to follow these examples and ratify, in turn, this essential text,' declared Mr Matsuura. 'The example of Afghanistan reminds us that each work of art contains part of a nation's soul and that the renaissance of a country also requires the restitution of its stolen art.'").
237 The sections implemented by Japan are generally the same as those implemented by the United States.
23 See UNESCO Cultural Property Convention, supra note 221, art. 7 (requiring parties to take action to constrain the importation and exportation of stolen cultural property, including taking appropriate steps to recover and return cultural property at the request of the state of origin in return for just compensation).
239 Japan Implementing Legislation, supra note 222, Supplementary Provisions, paras. 2-3.
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Article 2 of the enabling legislation defines cultural property to include not only domestic cultural property but also, in accord with UNESCO Convention requirements, property that has been affirmatively designated by any country requesting restitution prior to the claim or return having been submitted to Japan.240 The Convention requirement seems properly suited to protecting cultural objects illegally or illicitly taken from those rare countries, like Japan, that have promulgated legislation that specifically provides for a relevant form of designation. 241 The requirement also means that a country that does not provide for an official and qualifying registry or one that fails to keep its registry complete and up to date may have considerable difficulty in gaining the cooperation of Japan for the return of cultural objects. To reinforce the point, Section 2 of Article 2 of the implementing legislation defines domestic cultural property by not only making specific reference to the enumerated classes found in the Convention, but also, conjunctively, by requiring that such property be designated as important cultural property pursuant to Japan's 1950 law.
Requests for the return of stolen property by foreign governments and consistent with Article 7(b)(i) of the Convention are to be directed to the Japan's Minister of Foreign Affairs who, thereafter, has the responsibility to notify the Minister of Education, Culture, Sports, Science and Technology ("MEXT"). MEXT is also the agency charged with administration of Japan's domestic laws for the protection and promotion of cultural properties write large. MEXT must, after consultation with the Minister of Economy, Trade and Industry, designate the specific foreign cultural property that is the subject of the claim in accord with the procedure to be found in the appropriate MEXT Ordinance. The ordinances anticipated by the Act are not general
240 Id. art. 2 (including in the term "cultural property" items that a State "has designated in accordance with Article 1" of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property).
241 Bunkazai Hogo H6 [Law for the Protection of Cultural Properties], Law No. 214 of 1950, art. 27-29, available at http://aw.e-gov.go.jp/cgi-bin/ idxselect.cgi?IDXOPT=3&HNAME=&HNAMEYOMI= %82%aO&HNO_ GENGO=S&HNOYEAR=25&HNOTYPE=2&HNONO=214&HFILENA ME=S25HO214&HRYAKU=1&HCTG=1&HYOMIGUN=1&HCTGGUN=1, translated in Independent Administrative Institution, National Research Institute for Cultural Properties, http://www.tobunken.go.jp/-kokusen/ENGLISH/ DATA/Htmlfg/japan/japan0l.html (setting forth rules for the designation, the announcement, notice and issuance of the certificate of designation, and annulment of the designation).
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statements of procedures by which requests are handled; rather they are informational and specifically tailored to the details of each individual claim. At this time, there has only been one claim for restitution made under the Act,242 and thus, a single ordinance has been promulgated. 243 The ordinance addresses a request by Turkey for the recovery of a black leather bible with a silver cover and two silver crosses stolen from the Dyerburc/Cyriac Ancient Virgin Mary Church made by that country on January 7, 2003.
The listing is intended to implicate the customs service of Japan with the intended consequence that the importation of the specified property would be restricted. The legislative vehicle for this purpose, as specifically referenced in Article 4 of the implementing legislation, is Article 53 of the Foreign Exchange and Foreign Trade Law.244 That law states:
The importer has an obligation to obtain import authorization. Import authorization is imposed upon them for the purpose of healthy development of foreign trade and domestic economy, contribution of international peace, and also to implement the cabinet approval in Article 10, paragraph 1.245
242 It is anticipated that Italy will present a second formal claim. See Masaki, supra note 23 (describing allegations by the Italian government that Japan's museums contain smuggled Roman antiques). 243 See infra app. 4 (describing two books stolen in Turkey which were requested in an ordinance).
It establishes an ordinance to appoint a Specified Foreign Country's Cultural Property which is prescribed to Article 3 Clause 2 of the law about a regulation concerning an illegal import and export of cultural property as follows to enforce the law about a regulation related to such as illegal import and export of cultural property.
Minister of Education, Culture, Sports, Science and Technology appoints the following articles as the property which is prescribed to Article 3 Clause 2 of the law concerning a regulation related to such as illegal import and export of cultural property. This ordinance takes effect on a day of the promulgation.
See http://aw.e-gov.go.jp/cgi-bin/strsearch.cgi (translation on file with the author). 244 Gaikoku Kawase oyobi Gaikoku Boeki Kanri Ho [Foreign Exchange and
Foreign Trade Control Law], Law. No. 228 of 1949, translated in http://www.cas.go.jp/jp/seisaku/hourei/data/FTA.pdf (unofficial translation by Japanese government).
245 Id. art. 52. For a literal translation, see Legal Name List, http://wwwll.ocn.ne.jp/-jesco/contentsl.html#Top (last visited Apr. 13, 2008).
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In general, this provision effectuates the general import clearance procedures that are required in Japan. In addition, procedures specified in Article 52 of the Foreign Exchange and Foreign Trade Law require that an individual desiring to import goods properly declare them, pay any appropriate customs duty and apply to the Director General (Zeikan-chou) for a grant of permission to enter the goods (yunyu-kyoka). Thereafter, the authorization for importation must be received from the Ministry of Economy, Trade and Industry as mandated by Article 4, Paragraph 1, Item 1 and Article 9 of the Cabinet Order on Import Trade Control.246 This requirement applies to all articles that possess an import quota and upon which special requirements are imposed. 247
Article 5 of the Law addresses the importation by foreign nations of Japanese domestic cultural property that is lost or stolen as defined in Article 33 of Japan's 1950 Law for the Protection of Cultural Property. 248 It provides a procedure by which administrators are to forward claims for repatriation of such property to other party members of the UNESCO Convention. In accord with Article 5, MEXT is to announce the loss in the Official Gazette so as to provide notice to the public in addition to giving specific notice to the Minister of foreign Affairs. Upon receiving the notice, the latter Minister is to immediately notify relevant foreign governments.
246 Other goods that possess import quotas include narcotics and related controlled substances, weapons, and goods covered by the Convention on International Trade in Endangered Species of Wild Fauna and Flora ("Washington Convention"), the Montreal Protocol on Substances that Deplete the Ozone Layer, and the Stockholm Convention on Persistent Organic Pollutants.
247 For a graphic flowchart of import trade control, see Cabinet Office of Japan, availableat http://www5.cao.go.jp/otodb/english/houseido/image/ 08010-1.pdf (describing the different stages of import controls products undergo in Japan).
248 Bunkazai Hogo H6 [Law for the Protection of Cultural Properties], Law No. 214 of 1950, art. 56-12, 73-2, 75, available at http://law.e-gov.go.jp/cgi-bin/idxselect.cgi?IDXOPT=3&HNAME=&HNAMEYOMI= %82% aO&HNO_ GENGO=S&HNOYEAR=25&HNOTYPE=2&HNONO=214&HFILENA ME=S25HO214&HRYAKU=1&HCTG=1&HYOMIGUN=1&HCTGGUN=1, translatedin Independent Administrative Institution, National Research Institute for Cultural Properties, http://www.tobunken.go.jp/-kokusen/ENGLISH/ DATA/Htmlfg/japan/japan0l.html (enumerating relevant custody provisions for stolen and lost articles).
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5.2.4.3.1. Stolen Objects and Bona Fide Purchasers
As previously indicated, many civil law countries, as a matter of private law, provide special protection to individuals who purchase moveable property in good faith, and Japan is counted among that number. 249 This is in contradistinction to the general treatment of such purchasers in the United States 25 0 and other
249 See Saul Levmore, Variety and Uniformity in the Treatment of the Good-Faith Purchaser,16 J. LEGAL. STUD. 43, 56-7 (1987) (explaining the variety in legal systems regarding the treatment of the good-faith purchaser of stolen property and the civil law perspective of France). It should be noted that in Japan and in the years following 1868, much of its legal system was modeled after those of France and Germany. See also ODA, supra note 200 at 26-29. For a discussion of this history, see, Scott, The Cultural Property Laws of Japan:Social, Political,and Legal Influences, supranote 160. 250 As a general rule, a thief cannot, in the United States, obtain good title to property he has stolen nor can he pass good title to a bona fide purchaser. See,
N.J.S.A. 12A:2-403(1) (noting that the Uniform Commercial Code might, in some circumstances, permit the transfer of title to a bona fide purchaser from a merchant in the goods if the person from whom it was wrongfully appropriated entrusted the goods to the merchant knowing that he dealt in the sale of such items); Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts Inc., 917 F.2d 278, 289 (7th Cir. 1990) (outlining exceptions to this general premise found in application of certain affirmative defenses against claims made in replevin for the return of property); O'Keeffe v. Snyder, 416 A.2d 862, 867 (N.J. 1980) (repeating the principle that a thief cannot transfer good title to others regardless of their good faith and ignorance of the theft). See generally BLACKSTONE, supra note 226. Exception may also be found in actions for damages in conversion that result from the wrongful taking. These generally take the form of a limitation on time for making a claim, a statute of repose or adverse possession, the latter two supporting interests in the stability of title. See RESTATEMENT (FIRST) OF PROP. § 220 cMT C. (1936) (describing statutes declaring the adverse possessor to be the legal owner.).
The application of these principles has been affected by the development of such considerations as the ability of the person harmed to discover when the theft took place.
To avoid harsh results from the mechanical application of the statute, the courts have developed a concept known as the discovery rule. The discovery rule provides that, in an appropriate case, a cause of action will not accrue until the injured party discovers, or by exercise of reasonable diligence and intelligence should have discovered, facts which from the basis of the cause of action. The rule is, essentially, a principle of equity, the purpose of which is to mitigate unjust results that otherwise might flow from strict adherence to a rule by which the action accrues on the date of the theft.
O'Keeffe v. Snyder, 416 A.2d 862, 869 (N.J. 1980) (citation omitted). The standard in New York is different and does not rely upon due diligence. Instead, the inquiry is whether the individual has made a formal demand for the return of the property which has been refused; See Solomon R. Guggenheim Foundation v. Lubell, 569 N.E.2d 426 (N.Y. 1991) (holding that until demand for
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common law countries. The applicable law in Japan relating to title of goods purchased in good faith is found, generally, at Articles 192-194 of the Civil Code. 251 Article 192 provides that if an
return is made and refused, possession of stolen property by a good-faith purchaser for value is not wrongful). What is most important to note, however, is that the United States, unlike Japan, has been reluctant to protect the interests of a bona fide purchaser in these contexts.
In a very cryptic statement that generally explains the position of U.S. courts with respect to those who are in receipt of stolen cultural properties, the court in Autocephalous Greek-Orthodox Church of Cypress v. Goldberg stated:
As Byron's poem laments, war can reduce our grandest and most sacred temples to mere "fragments of stone." Only the lowest of scoundrels attempt to reap personal gain from this collective loss. Those who plundered the churches and monuments of war-torn Cyprus, hoarded their relics away, and are now smuggling and selling them for large sums, are just such blackguards. The Republic of Cyprus, with diligent effort and the help of friends like Dr. True, has been able to locate several of these stolen antiquities; items of vast cultural, religious (and, as this case demonstrates, monetary) value. Among such finds are the pieces of the Kanakaria mosaic at issue in this case. Unfortunately, when these mosaics surfaced they were in the hands not of the most guilty parties, but of Peg Goldberg and her gallery. Correctly applying Indiana law, the district court determined that Goldberg must return the mosaics to their rightful owner: the Church of Cyprus. Goldberg's tireless attacks have not established reversible error in that determination, and thus, for the reasons discussed above, the district court's judgment is AFFIRMED.
Lest this result seem too harsh, we should note that those who wish to purchase art work on the international market, undoubtedly a ticklish business, are not without means by which to protect themselves. Especially when circumstances are as suspicious as those that faced Peg Goldberg, prospective purchasers would do best to do more than make a few last-minute phone calls. As testified to at trial, in a transaction like this, "All the red flags are up, all the red lights are on, all the sirens are blaring." (quoting testimony of Dr. Vikan). In such cases, dealers can (and probably should) take steps such as a formal IFAR search; a documented authenticity check by disinterested experts; a full background search of the seller and his claim of title; insurance protection and a contingency sales contract; and the like. If Goldberg would have pursued such methods, perhaps she would have discovered in time what she has now discovered too late: the Church has a valid, superior and enforceable claim to these Byzantine treasures, which therefore must be returned to it.
Autocephalous Greek-Orthodox Church of Cypress v. Goldberg, 917 F.2d 278, 293-4 (7th Cir. 1990).
251 There are two additional laws similar in substance to Civil Code Sections 192-94. See, e.g., Shichiya Eigyo Ho [Pawnshop Business Act], Act No. 158 of 1950, availableathttp:/ /law.e-gov.go.jp/cgi-bin/idxselect.cgi?IDXOPT=3&HNAME= &HNAMEYOMI=%82%aO&HNOGENGO=S&HNOYEAR=25&HNOTY PE=2&HNONO=158&H FILE_NAME=S25HO158&HRYAKU=1&HCTG=1& H_YOMIGUN=1&HCTG GUN=l; Kobutsu Eigyo Ho [Antique Business Act],
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individual openly, peaceably and with no notice of an outstanding and opposing claim, exercises control over a moveable object 25 2 through possession and intends thereby to claim a right of title to it, that individual will be deemed to have immediately acquired an interest in the property so long as he has acted in good faith and without negligence. 253 Thus, the required elements under the law are:
The object must be a chattel;
The object must acquired in a valid transaction and otherwisefree of transactional defects; The Seller and Claimant are in actual possession of the chattel; The Seller does not actually possess authority to dispose of the
chattel; and The Claimant's possession is peaceful, open and without negligence.
In accord with Section 1 of Article 181 of the Civil Code of Japan, there is a consequent statutory presumption of ownership if a person exercises reasonable care in the purchase of an item, including an item of cultural property, and he genuinely believes himself to be the owner of that property. In addition, the transaction is, in these circumstances, deemed open, and as a result, the possessor acquires immediate title to the item. This condition is true notwithstanding that the object may, in fact, be lost or stolen.
The law reflects a policy favoring the stability of title, particularly in the normal course of commerce; is supportive of the view that actual possession of a moveable is the most reasonable
Act No. 108 of 1949, art. 20, available at http://aw.e-gov.go.jp/cgi-bin/ idxselect.cgi?IDXOPT=3&HNAME=&HNAMEYOMI=%82%aO&HNO_ GENGO=S&HNOYEAR=24&H NO TYPE=2&HNO NO=108&HFILENA ME=S24HO108&HRYAKU=1&H_CTG=1&HYOMIGUN=1&H_CTGGUN=1. See also Kobutsu Eigyo Ho Shiko Kisoku [Regulation Implementing Antique Business Act], Regulation of National Public Safety Commission No. 10 of Sept. 20, 1995, availableat http://aw.e-gov.go.jp/htmldata/H07/ H07F30301000010.html (explaining the antique business enforcement rules).
252 In general, the object must be one that is not generally subject to any law requiring specific registration (for example, an automobile, boat or aircraft) and the transfer of ownership of which is by emblement of title rather than by a transfer of possession. See ODA, supra note 200, at 156-58 (providing an example demonstrating how movables can be acquired through immediate acquisition).
253 See, MINPO [Civil Code], art.192, translated in http://www.cas.go.jp/jp/seisaku/hourei/data/CCl.pdf (stating, "If a person as peaceably and openly commenced to possess a movable, acting bona fide and without negligence, he shall immediately acquire the right which he purports to exercise over such movable").
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and usual way of manifesting a claim of ownership in it, and that the reasonable expectations of an individual in possession should be protected under the law. Since the terms and policies of the articles seem clear, few courts have provided interpretation of their terms.
Courts have on a limited number of occasions been called upon to consider the meaning of the terms "openly and peaceably." For example, the Tokyo High Court 254 considered the claim of an aggrieved purchaser who removed goods from the office of the seller who he felt had failed to comply with the terms of a vending agreement. The Court concluded since the removal was not specifically authorized by the transfer agreement, the purchase was not considered to have been acquired peaceably. In addition, in an Osaka District Court Decision,255 it was deemed that removal of goods at midnight from a seller's factory was not considered open.
In addition, actual physical delivery and consequent physical possession of the chattel have been deemed imperative to a legitimate claim of ownership under the Article. For example, Japan's Supreme Court 256 considered a case in which a seller ("S") signed a contract of sale of chattel with purchaser ("X"), and purchaser X was given the key to the warehouse in which the object was housed. The object was not, however, reduced to actual physical possession, and due to a legal deficiency, the contract of sale between S and X was considered invalid. X proceeded to sign a contract of sale for the chattel with purchaser ("Y") after which he returned the key to the warehouse to the original seller S. The original seller S then sold transferred the chattel to purchaser ("Z"). An action filed by X against Z was dismissed due to the invalidity of the contract of sale and lack of possession as required by Article
192.
Article 193 of the Civil Code addresses the situation under which a claim for restitution is made by a former owner who either lost the property or from whom it was wrongfully taken. In accordance with the Article, an individual in such a situation may seek recovery of the item within a two-year period, 257 and he is, in
254 Izamu Shoko Corp. et al. v. Kato et al., 28 HANREI-HYORON 889 (Tokyo App. Ct., May 6, 1939); see generallyODA, supranote 200.
255 Tsugami Shoji Corp. v. Omi Sangyo Corp., 347 HANREI-JIHO 46 (Osaka D. Ct., Jan. 24, 1962); see generallyODA, supra note 200.
L% Mimura v. Koyo Corp., 14 MINSHO 168 (Sup. Ct., Feb. 11, 1960).
257 See MINPO [Civil Code], art. 193, translated in http://www.cas.go.jp/jp/seisaku/hourei/data/CCl.pdf (stating that "[if in the
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general, entitled to return of the property without the payment of any consideration to the good faith purchaser.
This general provision is, however, qualified by Article 194, which addresses commercial transactions involving public sales or merchants as opposed to sales between private individuals. Article 194 conditions return of the property upon reimbursement 2 8 to the bona fide purchaser of the price that was paid for the object. 259 This appears to be founded upon policies favoring stability of title much like that found in the Uniform Commercial Code.260 An exception to the requirement of reimbursement, however, can be found in Article 22 of the Antique Business Law. This Article states that if a good that has been lost or stolen is found to be among the inventory of a "used goods dealer," a victim of a theft or a loser can request recovery without having to pay compensation even though the purchaser might have been in good faith and bona fide. In such a circumstance, a person from whom property has been stolen has one year during which to make a claim for restitution. A question may arise in such a situation, however, as to the definition of a used good dealer and whether an art dealer who resells goods acquired from others would qualify under the exception. This issue has yet to be addressed in Japan.
5.2.4.3.2. Bona Fides Under The Law Concerning Controls on the Illicit Export and Import of Cultural Property
Article 6 of the Law Concerning Controls on the Illicit Export and Import of Cultural Property makes certain limited and qualified alterations to Articles 192, 193 and 194 of the Civil
case mentioned in the preceding Article the thing possessed is a stolen or lost article, the injured party or the loser may recover the article from the possessor within two years from the time when the article was stolen or lost").
258 France also requires that compensation be paid to good faith purchasers. See C. civ. art. 2279. Until 1994, the United Kingdom, a common law jurisdiction had a rule that gave title to a buyer of goods who purchased at an open market. This was repealed by Sale of Goods Act (Amendment) 1994. 259 See MINPO [Civil Code], art. 194, translated in http://www.cas.go.jp/jp/seisaku/hourei/data/CCl.pdf (stating, "If the possessor of a thing stolen or lost has bought it bona fide at a sale by auction, in a public market or from a trader selling things of the same kind, the injured party or the loser cannot recover the thing unless he reimburses the possessor for the price paid therefore."). 260 N.Y. U.C.C. LAW §2-403 (2007) (providing New York power to transfer, good faith purchase of goods, and entrusting provisions, all of which support a stability of title policy).
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Code. 261 With respect to specified foreign cultural property as defined in the law, the usual two year period provided in Section 193 of Japan's Civil Code during which an action can be commenced for the recovery of specified foreign cultural property is extended to a total of 10 years. This extension is limited, however, only to a situation when the foreign property claimed under the law was specified prior to importation into Japan. In addition, and consistent with Article 194 of the Civil Code, in order to obtain the return of an object, a victim must reimburse the possessor. The extent of reimbursement is limited to the price actually paid for the object and does not include any appreciation in value.262 As a consequence of Article 6, property that was stolen or misappropriated in the remote past is beyond the reach of the statute.
5.2.5. The Law on the Promotionof InternationalCooperation Regarding CulturalHeritage-2006
Japanese painter Ikuo Hirayama, known for his considerable attempts to support international efforts to preserve world heritage, recently catalyzed a bipartisan group of legislators in Japan to introduce a bill designed to promote international cooperation in protecting cultural heritage in the spirit that it is the common property of all mankind. The statute, promulgated on June 23, 2006, is formally titled The Law on the Promotion of International Cooperation Regarding Cultural Heritage.263 A copy of a translation of the law is included as Appendix 2.264 The law is designed to contribute to the continuing effort of Japan as it promotes cultural property interests and to permit the country to
261 MINPO [Civil Code], art. 6, 192-94, translated in http://www.cas.go.jp/jp/seisaku/hourei/data/CCl.pdf (unofficial translation by Japanese government). 262 It may be interesting to note that the issue of the specific level of compensation has been on import to many common law countries as they have both considered and, in some cases, selectively implemented the UNESCO and/or the UNIDROIT Conventions. 263 Kaigai no Bunka Isan no Hogo ni Kakawaru Kokusaitekina Kyoryoku no Suishin ni Kansuru Horitsu [Act on the Promotion of International Cooperation Regarding Cultural Heritage], Act No. 97 of 2006. 264 A copy of the law in Japanese can be found at http://law.e-gov.go.jp/cgi-bin/idxselect.cgi?IDXOPT=1&HNAME=%8a%43%8a%4f%82%cc%95%b6%89% bb%88%e2%8e%59&HNAMEYOMI=%82%aO&HNOGENGO=H&HNOYE AR=&H_NO_TYPE=2&HNONO=&HFILENAME=H18H097&HRYAKU =1&HCTG=1&HYOMIGUN=I&HCTGGUN=1.
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assume a leading role in protecting world cultural treasures. This effort is fully consistent with those commenced in 1989 by the establishment by Japan of the UNESCO/Japanese Trust Fund for the Preservation of World Cultural Heritage.265 Japan has recently expressed concern that its ability to respond properly to legitimate demands of the world community has been limited in certain theatres, such as in Iraq and Afghanistan, due to the provisions of the Japanese constitution that limit military involvement to self defense forces. 266 The recent law is an attempt to continue to expand Japanese positive influence in the arena of world affairs. Based upon the law, an administrative organization has been established to aid in carrying out the mission of the statute; the organization has been named the Japan Consortium for International Cooperation in Cultural Heritage. 267
5.2.6. A Cultural Understandingwith Italy -2007
On March 19, 2007, a Memorandum of Understanding was reported to have been signed by the Deputy Prime Minister and Minister of Cultural Heritage Francesco Rutelli of Italy and the Minister of Education, Science, and Technology Bunmei Ibuki of Japan, addressing joint efforts with respect to the preservation of cultural heritage. 268 This follows closely upon discussions held late
265 For a description of the fund, see UNESCO, Japanese Funds-in-Trust for the Preservation of World Cultural Heritage, available at http://portal.unesco.org/culture/en/ev.php-URLID=2210&URLDO=DO_ TOPIC&URLSECTION=201.html (last visited Apr. 10, 2008) (explaining that the purpose of the Fund is to preserve the tangible cultural heritage such as historic monuments and archaeological remains of great value). 266 See Furuya Keiji Tsushin: Sekai no Bunka Isan Shufuku, Hogo ni Nihon ga Yakuwari wo Hatasu tameni[Keiji Furuya Internet Announcement: For Japan to Play a Leadership Role in Restoration and Protection of Cultural Heritages in the World], Mar. 13, 2006, http://www.furuya-keiji.jp/2006/03/post_17.html (last visited Apr. 10, 2008).
267 See generally UNESCO/Japan Funds-in-Trust, supranote 26.
268 In fact, it appears that the actual Memorandum of Understanding was not signed, but instead a binding "Agreed Minute" was signed that looks forward to an actual Memorandum of Understanding. In order to follow the progress of the agreement, contact was made with the Ministry of Cultural Heritage in Italy. After a conversation with one of the secretaries of the Legislative Office of the Ministry, on April 4, 2007, a missive was sent to the Head of the Legislative Office of the Ministry. This was followed up by a telephone call to the Research, Innovation and Organization Department of the Ministry, whose webpage hosts the Memorandum signed with China. On April 13, 2007, an email communication was transmitted to the Head of the International Relations Office, asking her if there was any possibility to receive the text of the agreement. It was described that there was difficulty in obtaining a copy of the agreement since they are
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last year between the two governments. 269 This memorandum is part of a multinational effort mounted by Italy, Japan, and China to jointly promote cooperation in protecting and preserving the world's cultural heritage and to strengthen the collaboration in the areas of cultural heritage protection and administration of galleries and museums.270 An additional and pragmatic goal is to ease the exchange of experts and foster mutual knowledge and cultural understanding. 271
Pursuant to this general mission, on January 20, 2006, Italy signed a Memorandum of Understanding with China that provided for the establishment of a center for the protection of cultural heritage, which will be located in Beijing. The goals of the specific relationship with China are to promote the exchange of information relating to the restoration and preservation of cultural heritage in the two countries; provide a means by which Italian technologies in these areas can be made available and applied to works in China; and promote the preservation of cultural properties in the larger world community. Through these efforts, Italy hopes that it will become a "point of reference" among restorers and conservators of important works of art, murals, and artifacts that are in jeopardy. A copy of the translation of the
considered secret and are made available only after some months from the date of the signing.
On April 20, 2007, another telephone call was made to the Research, Innovation and Organization Office. On April, 23, 2007, a responsive memo was received from a representative of the director that indicated that despite the good intentions of the Italian and Japanese Ministers during the meeting in Tokyo to sign a Memorandum of Understanding-as stated on the website-the two Ministers signed an "agreed minute" instead. This agreement is intended to bind the two countries on many issues, and will most probably be the basis for a proper memorandum of understanding to be signed in the future. To date, such an actual memorandum remains secrete; it will become available to the general public several months following the actual signing.
269 See Press Release, Ministry of Cultural Heritage, Second Bilateral Meeting of Italian and Japanese Experts in Order to Foster the Cooperation in the Area of Cultural Heritage (Nov. 11, 2006), availableat http://www.beniculturali.it/ sala/dettaglio-comunicato.asp?nd=ss,cs&Id=2313&ricerca-l&titolo =&giorno=O1 &mese=11&anno=2006&cat (translation on file with author) (describing the meeting between Italy and Japan aimed at preserving world cultural heritage). 270 See Research, Innovation, Organization Department of the Ministry of Cultural Heritage, Cooperazione nella protezione del patrimonio culturale (title translates to "Cooperation for the Protection of Cultural Heritage, Bilateral Agreements for the Cooperation in the Protection of Cultural Heritage"), http://www.rio.beniculturali.it/index.php?it/128/cooperazione-nella-protezione-del-patrimonio-culturale (last visited Mar. 13, 2008).
271 Id.
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document, from Chinese and Italian, is attached as Appendix 3 to this article. 272
5.2.7. HAGUE Convention -Japan'sMovement to Become a Signatory
In 1862, Henry W. Halleck, General-in-Chief of the Union Armies consulted Columbia Law Professor Francis Lieber and asked him to help draft a code for the conduct of war. The Lieber Code was adopted as General Order No. 100 in 1863. Contained in the code were the first formal statements in the United States concerning the treatment of cultural property during times of war. Sections 34 through 36 addressed the issue and stated:
34.
As a general rule, the property belonging to churches, to hospitals, or other establishments of an exclusively charitable character, to establishments of education, or foundations for the promotion of knowledge, whether public schools, universities, academies of learning or observatories, museums of the fine arts, or of a scientific character -such property is not to be considered public property.., but it may be taxed or used when the public service may require it.
35.
Classical works of art, libraries, scientific collections, or precise instruments, such as astronomical telescopes, as well as hospitals, must be secured against all avoidable injury, even when they are contained in fortified places whilst besieged or bombarded.
36.
If such works of art, libraries, collections, or instruments belonging to a hostile nation or government can be removed without injury, the ruler of the conquering state or nation may order them to be seized and removed for the benefit of the said nation. The ultimate ownership is to be settled by the ensuing treaty of peace.
272 Id. It is also the information of the author that it is intended that the agreement between Japan and Italy will take a form very much like that of the Italy/ China agreement.
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In no case shall they be sold or given away, if captured by
the armies of the United States, nor shall they ever be
privately appropriated, or wantonly destroyed or
273
injured.
The code attempted to require that both attacker and defender secure cultural property against unavoidable injury.
The deferential and respectful philosophy toward cultural property contained in the Lieber Code found international support and was included in the Hague Conventions of 1899274 and 1907275 to which the major world parties acceded. For example, Article 56 of Hague 1899 states that "[a]ll seizures of, and destruction, or intentional damage done to such institutions, to historical monuments, works of art or science, [are] prohibited." 276
Unfortunately, the Conventions did not pass the test of World War I during which the Rheims Cathedral was bombed and the library at Louvain, France was burned. Following the defeat of Germany, the issue of the protection of cultural property was addressed in the Treaty of Peace between the Allied and Associated Powers and Germany known as the Treaty of Versailles. 277 Article 245 of the Treaty of Versailles, for example, required Germany to return all property of historical significance that it had stolen. The United States was not a signatory to the Treaty, but it did sign The Treaty of Berlin. 278 Both treaties contained provisions whereby Germany accepted responsibilities for damage it had caused. Ultimately, 25,433 claims were filed and 7,025 awards were made.279
The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 280came into force in August 1956
273 LEON FRIEDMAN, THE LAW OF WAR 158 (1972) (citing the Lieber Code).
274 Convention with Certain Powers Respecting the Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1803 (1903), T.S. No. 403.
275 Convention with Other Powers Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, T.S. No. 539.
276 Convention with Certain Powers Respecting the Laws and Customs of War on Land, supra note 274.
277 Treaty of Peace with Germany (Treaty of Versailles), June 28, 1919, 112 British and Foreign State Papers 1, 1919 U.S.T. LEXIS 7, 2 Bevans 43.
278 Treaty of Berlin, U.S.-Ger., Nov. 21, 1921, 42 Stat. 1939.
279 LEONARD P. DUBOFF, SHERRI BURR & MICHAEL D. MURRAY, ART LAW 46
(2004).
280 Final Act of the Intergovernmental Conference on the Protection of Cultural Property in the Event of Armed Conflict (May 14, 1954), available at http://unesdoc.unesco.org/images/0008/000824/082464mb.pdf.
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and was signed by Japan in May 1954. Notwithstanding and as of
January 2007, although 116 countries have signed the convention, it
has not been ratified by Japan, nor has it been ratified by other
significant countries including the United States, 281 Great Britain,
and South Korea.
The Convention 282 addressed the plight of cultural property
during armed conflict and for the first time included a definition of
the term. It stated that cultural property included:
(M)ovable or immovable property of great importance to the
cultural heritage of every people, such as monuments of
architecture, art or history, whether religious or secular;
archaeological sites; groups of buildings which, as a whole, are of
historical or artistic interest; works of art; manuscripts, books and
other objects of artistic, historical or archaeological interest; as well
as scientific collections and important collections of books or
archives or of reproductions of the property defined above.283
The Convention expanded coverage to all armed conflict not just declared wars, and it also created an international register of Cultural Properties under Special Protection. 284 It requires signatory parties to protect cultural property within their own territories as well as in territories of other signatories from pillage and theft,285 and among other acts, it expressly prohibits the seizure of such properties as trophies. 286 As a concession to nationalism,
281 While not a signatory, each U.S. military service branch is required to have rules that comply with the general law of war. It is the general proposition of the United States that while it is not obligated to comply with the detailed administrative terms of the 1954 Convention, it does comply with the custom and spirit of the international community in protecting cultural property. OPERATIONAL LAW HANDBOOK, DEPARTMENT OF DEFENSE DIREcTIvE 5100.77, AFO 110-34, (John Rawcliffe ed., 2007), availableathttp://www.fas.org/irp/doddir/ army/law2007.pdf. 282 Convention for the Protection of Cultural Property in the Event of Armed Conflict, supra note 232. 283 Id. art. 1(a)-(c) (defining "cultural property" to cover buildings intended to preserve or exhibit cultural property such as museums, among others, and centers containing monuments).
284 Id. art. 12.
285 Id. art. 3-4 (mandating respect for cultural property among the contracting parties by prohibiting or preventing any theft, vandalism, or misappropriation of cultural property and refraining from any use of the property for protection purposes in the event of an armed conflict).
286 Id. art. 14 (granting protected cultural property and its transport immunity from seizure, capture, and prize).
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military necessity is made an exception to the obligations of the
287
treaty.
The U.S. and a number of its allies, including Japan, have reportedly declined to sign the convention because of concerns that they might not be able to carry out their obligations to protect cultural property near military targets as required by the First Protocol, particularly in the event of the use of nuclear devices. As a result of a new protection charter set out in the Second Protocol approved in 1999, however, Japan is now considering ratification of the treaty. It has reported that Japan now believes that the Cultural Affairs Agency of Japan now possesses the power to order
or advise keepers of cultural property on means by which to protect the property in the event of attack. This is a part of its initiative in and commitment to the subject of protecting world cultural heritage. Reports in February 2007 also indicate that the government is on the brink of introducing legislation that will prohibit the importation of cultural properties from occupied
288
areas.
5.2.8. General Efforts at Repatriationby Japan
In recent years Japan, its institutions, and its people have made significant efforts to return objects, claimed to have been removed illicitly, to various countries of origin. As previously mentioned, in 1965, on the occasion of the Japan-South Korea Normalization Treaty through which Japan and South Korea resumed diplomatic relations, over 1,500 objects, including porcelains and documents, were repatriated. Recently, the Japan-DPPRK Pyongyang
287 Convention for the Protection of Cultural Property in the Event of Armed Conflict, supra note 232, art. 4. See generallyJohn Merryman, Two Ways of Thinking About Cultural Property, 80 A.J.I.L. 831, 841-842 (1987) (stating that "despite its deference to military necessity, Hague 1954 expresses several important propositions affecting the international law of cultural property. One is the cosmopolitan notion of a general interest in cultural property-"the cultural heritage of all mankind" -, apart from any national interest. A second is that cultural property has special importance, justifying special legal measures to ensure its preservation. Another is the notion of individual responsibility for offenses against cultural property. The fourth is the principle that jurisdiction to try offenses against cultural property is not limited to the government of the offender." (internal citations omitted)).
288 See, e.g., Government to Ratify InternationalConvention to Save CulturalAssets in War, YOMIURI SHIMBUN (Japan), Feb. 4, 2007 (indicating that Japan will ratify the Convention for the Protection of Cultural Property in the Event of Armed
Conflicts).
U. Pa. J. Int'l . L. [Vol. 29:4
Declaration, flowing from discussions between Prime Minister Koizumi Junichiro and North Korea's Kim Jong II, explicitly referenced "the issue of cultural property, and made repatriation a continuing topic of diplomatic concern. 289 As described above, there have been numerous occasions when Japanese have voluntarily and charitably given property to Korea that they believe would best be located there. The donations have not only been of discrete and precious objects such as the tomes of the Goryo Dynasty recently given to Seoul National University, but they have also been of more mundane objects of cultural interest. So, for example, in 1987 a businessman gave one-half of his collection of Korean roof tiles to the Korean National Museum in Seoul.290
Perhaps for many Japanese, Koreans, and the world community, the most significant recent cultural repatriation was that of the Bukgwandaecheopbi, the stone monument commemorative of the defeat of Hideyoshi's forces during the Imjin War by volunteers of the Hamgyeong Province. Initially and in or about 1978, Korean scholar, Choi Seo-myeon stumbled upon newspaper references in which a Korean monk noted that he had seen it at the Yasakuni Shrine in Tokyo. After what is reported as a lengthy search, Choi found the stone. The Yasakuni shrine, itself, has been the object of some controversy as one of its purposes is as a memorial to honor Japanese war dead, including some who were convicted of war crimes following World War II. Since Japan did not have diplomatic relations with North Korea, South Korea intervened in the discussions considering the return of the object. Agreement was finally reached, and the relic was shipped to South Korea on October 20, 2005. The Japanese official who turned over the object expressed the hope that the action would "promote friendship between Japanese and Korean People." 291 An agreement between the two Koreas permitted the stone to remain on display in the South for six months, following which it was
289 As previously referenced, the Cultural Properties Administration of Korea is reported to believe that at least 34,157 objects of Korean origin remain in Japan, and claims that many of them were removed during Japan's Imperial period. Brad Glosserman, JapanSlams the Dooron Stolen Artwork, JAPAN TIMES ONLINE, Dec. 4, 2002, available at http://search.japantimes.co.jp/cgi-bin/eo20021204bg.html ("There are more than 1,000 Korean artifacts at the Tokyo National Museum, more than 800 at the Osaka City Museum of Ceramics and more than 2,100 books in the Kyoto University Library.").
290 See Kakuchi, supranote 49.
291 See Demick, supranote 51.
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transported to the border city of Gaeseong at which a ceremony for its transfer from South to North Korea took place. About 150 South and north Korean officials were in attendance. The relic continued its journey northward to its destination in North Hamgyeong Province. During preparation for the restoration activities, the original foundation of the monument was uncovered, and on March 23, 2006, a ceremony was held during which the monument was replaced on its original site on a low hill in Rimmyong-ri of Kim Chaek City. After the ceremony, the object was registered as National Treasure of the DPRK Number 193.292
The significant social and political purchase of the event is attributed to the close cooperation required of the governments and institutions of Japan and South and North Korea in order to affect the return of the monument to its place of origin. As stated by Yoo Hong-joon, the head of South Korea's Cultural Properties Administration, "The return of Bukgwandaecheopbi also means efforts to heal our painful injuries from the shared past of Korea and Japan." 293 During the handover ceremony at Gaeseong, Yoo stated, "On this occasion, I propose a meeting between the cultural authorities of the two Koreas in order to expand exchange and cooperation in the cultural sector." 294
The experience has, indeed, led to expanded collaboration between North and South Korea through reciprocal agreements for the exchange and exhibition of myriad cultural items. For example, in May 2006, ninety historical treasures from North Korea
were loaned to the South for a six month's exhibition in Seoul and Daegu. The objects included an 11th century bronze statue of Taejo Wanggeon that was excavated in 1993 from the tomb of the founder of the Goryeo Dynasty and a bird shaped bone flute harkening from about 2000 BCE295
The Ministry of Education in China has also expressed concern over the presence of Chinese objects in Japan. It has opined that there are likely more than 3.6 million Chinese rare books, works of
292 See Ancient Monument Restored in North Korea, NORTH KOREAN NEWS AGENCY, Mar. 23, 2006, availableat http://english.kbs.co.kr/news/ newsviewsub.php?menu=5&key=2006032330 (stating that the monument is registered as a national treasure).
293 Looted Stone Monument Returns From Japan After 100 Years, YONYAP NEWS AGENCY (South Korea), Oct. 21, 2005.
294 S. Korea Returns 18th Century War Memorial to North Korea, YONHAP NEWS AGENCY (South Korea), Mar. 2, 2006.
295 See Treasures From North, KOREA HERALD, May 10, 2006 (describing the expanding cultural exchanges between the Koreas).
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calligraphy paintings, and other objects of cultural or ethnographic significance reposed in Japan. 296
6. CONCLUSION
In the final analysis, there is little doubt that indigenous claims for repatriation of cultural objects possess considerable emotional purchase and political appeal, particularly within the geographic boundaries in which they were created or by those who relate to the nationality of the creator. However, historical events, geopolitical principles, varying definitions or conceptions as to that which is to be considered cultural property, and the implications of often disparate cultural and anthropological considerations will continue to challenge and frustrate attempts to develop a uniform, legitimate, international legal response to what is a significant world problem. Although singular, episodic, and isolated resolution of individual claims, as founded upon legal principles or fortuitous political events, may be forthcoming, actual progress in this arena is likely only when individual nations commence to develop viable and vibrant policies, sensitive to multi-disciplinary considerations, through which they might address cultural property concerns. It appears that Japan has commenced just such a journey. One can only hope that its efforts, to date, are representative of its dedication to a broader and continuing course of conduct, and that other nations of the world will not only take cognizance of the commendable efforts of Japan and Korea, but will also follow their lead.
296 Id.
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APPENDIX 1. AGREEMENT CONCERNING CULTURAL PROPERTY ANDEXCHANGE 297
TREATY BETWEEN JAPAN AND SOUTH KOREA CONCERNING CULTURAL PROPERTIES AND COOPERATION
[QMl1] 1965*6fiM22
[t ] []4 [, :bt 3-#.Wf (2), 600 601W , A,;n[%Mj
297 Translated from Japanese. Complete translation on file with author. Archive of Japanese Governmental Documents by Akihiko Tanaka, Professor of International Relations at the University of Tokyo Institute of Oriental Culture, available at http://www.ioc.u-tokyo.ac.jp/-worldjpn/ documents/texts/JPKR/ 19650622.TMJ.html (translated from Japanese into Mandarin and English). The author would like to extend his appreciation to Chia-Wen Lee, attorney from Taiwan, for her assistance with this translation. While every effort is made to ensure the accuracy of this translation, due to the complexities of language translation, portions may be incorrect. The Author, therefore, accepts full responsibility for the accuracy and reliability of all translated material.
For a good summary of comments on Japanese-Korean relations, see MINISTRY OF FOREIGN AFFAIRS OF JAPAN, JAPAN-REPUBLIC OF KOREA RELATIONS (Feb. 2008), http://www.mofa.go.jp/region/asia-paci/korea/index.html (last visited Apr. 6, 2008).
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In the light of the historical relationship in culture between two countries, Japan and South Korea agree to the following treaty, in order to contribute to the academic, cultural development and research in both countries.
Article I
The government of Japan and of South Korea shall provide any possible assistance to improve the private cultural relationship between two countries.
Article II
Within six months after the validation of this Treaty, the government of Japan shall, pursuant to the approved procedures, deliver the cultural properties listed in the enclosed document
X --
f
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Article III
The government of Japan and South Korea shall provide any possible convenience for the other nationals in research on the academic and cultural properties in its own art museums, museums and libraries.
Article IV
This Treaty shall be unconditionally validated. The instrument of validation shall be promptly exchanged in Seoul. This Treaty shall become effective on the date of the exchange of the instrument of validation.
In accordance with the above, the signature is under the reasonable authorization from each government to sign this treaty.
1965*6,q221H M'-? ,
On June 22, 1965, the original context was made both in Japanese and in Korean.
Japanese Representatives
Etsusaburo Shiina
Shinichi Takasugi
South Korean Representatives Lee Dong Won
Kim Dong Jo
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APPENDIX 2. THE LAW REGARDING THE PROMOTION OFINTERNATIONAL COOPERATION REGARDING THE PROTECTION OF THECULTURAL HERITAGE OF A FOREIGN COUNTRY298
The Law Regarding the Promotion of International Cooperation Regarding the Protection of the Cultural Heritage of a Foreign Country (Law No. 97 of June 23, 2006)
(The purpose) Article 1 This law is related to the promotion regarding an international cooperation (it is called "cultural heritage international cooperation" below) regarding the protection of the cultural heritage of a foreign country and also for cultural heritage that may be damaged, disappear, decline, was destroyed or has these possibilities, and to determine the basic principles and announce the responsibility of country etc., along with determining the basis of the policy regarding the promotion of cultural heritage international cooperation, this law intends to promote cultural heritage international cooperation, and this law also contributes to the improvement of the international position of our country a/the purpose, beside it contributes to the development of the various culture in the world.
(The basic principles) Article 2
1) About the cultural heritage international cooperation: in view of that a/the cultural heritage is a common precious property of all mankind, to make the most of the knowledge, technology, experience etc. that has accumulated in Japan, and to permit Japan to accept the role of leadership in the international society and actively contribute to the development of the various culture in the world, he cooperation shall be carried out in order to cultivating of
298 Complete translation on file with author. The author wishes to express his deep appreciation to Hideo Yoshida of the Japanese Patent Office, Tokyo for his assistance with this translation. While every effort is made to ensure the accuracy of this translation, due to the complexities of language translation, portions may be incorrect. The Author, therefore, accepts full responsibility for the accuracy and reliability of all translated material.
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the knowledge that Japan respects different cultures and promotes international mutual understanding in the area.
2) Considering the importance of the diversity of a/the culture is important, international cultural heritage cooperation must be carried out through the voluntary effort of the government and related organization of the foreign country in which the cultural heritages exist.
3) The policy regarding the promotion of international cultural heritage cooperation is to be carried out in consideration of the basic principles of the organic culture art promotion act ( Heisei 13, the 148th law).
(The responsibility of a country)
Article 3 A Country must follow the basic principles of the preceding article and assume the responsibility of setting the policy regarding the promotion of cultural heritage international cooperation and of carrying it out.
(The responsibility etc. of the education research organization) Article 4
1) A University and other education research organizations regarding cultural heritage international cooperation (below called "the education research organization") should make an effort to cultivate personnel capable of voluntarily and actively conducting the research and defusing the knowledge needed for cultural heritage international cooperation.
2) An educational research organization should try hard to provide security and proper treatment of a/the researcher and of upgrading and improving an/the education research institution so that the duties and the workplace environment of the researcher and engineer working in cultural heritage international cooperation becomes an importance, a suitable, and attractive experience.
3) In order to carry out the policy of the Act and the policy regarding the promotion of cultural heritage international cooperation an/the education research organization and Country must provide respect of independence of a researcher and the research in the education research organization.
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(The measure etc. on finance) Article 5 Government shall try hard to take the measures to provide necessary financial support to carry out the policy regarding the promotion of cultural heritage international cooperation and the other measures.
(The basic policy)
Article 6
1) The Minister of Education, Culture, Sports, Science and Technology and also the Minister of Foreign Affairs (below, it is called as "the basic policy") must determine a basic policy regarding the promotion of cultural heritage international cooperation to promote cultural heritage international cooperation.
2) Such a basic policy shall determine the basic things to promote cultural heritage international cooperation and the other necessary things.
3) The Minister of Education, Culture, Sports, Science and Technology and also the Minister of Foreign Affairs will also consult with the manager of related administrative departments, when they set or change the basic policy.
4) When the Minister of Education, Culture, Sports, Science and Technology and also the Minister of Foreign Affairs determine or change the basic policy, they shall announce that activity without any delay.
(The strength of coordination) Article 7 Considering that effective promotion of the cultural heritage international cooperation is promoted by the cooperation between a Country and the independent administrative corporation regarding cultural heritage international cooperation (the independent administrative corporation which is prescribed in the Heisei 11 Law 103 Article 2 Paragraph 1-independent administrative corporation general rules), education research organization, private enterprise etc. by mutual coordination, and the Nation shall make policy needed for the strength of the coordination between these organizations.
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(The mutual close coordination of a/the relation administrative organ) Article 8 All measures needed for appropriate promotion of the cultural heritage international cooperation must be carried out under the mutual close coordination of a/the relation administrative organ.
(The support to the education research organization and also private enterprise) Article 9 Nation shall affect necessary policy to support the activity of an/the education research organization and of private enterprise regarding cultural heritage international cooperation.
(The security etc. of a/the capable man) Article 10 Nation shall take the policy needed for the improvement of the security, training and also disposition of the individuals trained in or who has the specialized knowledge regarding the protection of a/the cultural heritage and of the independent administrative corporation, education research organization, private enterprise etc. regarding cultural heritage international cooperation in order to promote close mutual coordination cooperation in international cultural heritage cooperation.
(The policy for international cooperation) Article 11 The Nation shall try hard to take a necessary and appropriate policy and the exchange of the information with related organization or international organizations or the government of the foreign country, consistent with any treaty etc. regarding the protection of the cultural heritage and to promote cultural heritage international cooperation under international cooperation.
(The collection, tidying and also utilization of the information of the interior and exterior of the country) Article 12 Nation shall take the collection of the information from without and within the country regarding cultural heritage international cooperation, so that necessary cultural heritage international cooperation is carried out appropriately and effectively.
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(The reflection of the opinion)Article 13Nation shall upgrade systems and set other policy to make possiblethe communication of the opinion of the person concerned withcultural heritage preservation, reconstruction etc. in culturalheritage international cooperation consistent with the policy of thecountry, to contribute to the proper plan and also enforcement ofthe policy regarding the promotion of cultural heritageinternational cooperation.
(The increase of the understanding and also interest of the nations)Article 14Nation shall promote public education and public relationsregarding cultural heritage international cooperation and the othernecessary policies to deepen the understanding and interest of thenations regarding the importance of the role that the researcherand also engineer accomplish in cultural heritage internationalcooperation and also cultural heritage international cooperation.
Additional ruleThis law implements it from the day of proclamation.
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APPENDIX 3. MEMORANDUM OF UNDERSTANDING:COOPERATION FOR THE PROTECTION OF CULTURALHERITAGE BETWEEN THE MINISTRY OF CULTURALHERITAGE OF THE ITALIAN REPUBLIC AND THEADMINISTRATION FOR CULTURAL HERITAGE OF THECHINESE PEOPLE'S REPUBLIC. 299
With a view to the richness of their respective cultural heritages and to the good relations between the two countries in the field of the protection of the cultural heritage, the Ministry of Cultural Heritage of the Italian Republic and the Administration for Cultural Heritage of the Chinese People's Republic, are now determined to strengthen their collaboration in the areas of protection of cultural heritage and museum administration. They also hope to facilitate the exchange of experts and the bilateral cooperation in those areas in order to strengthen mutual knowledge and comprehension. Further to the desires expressed during the meeting between the Italian Minister of the Cultural Heritage and the Director of the State Administration for the Cultural Heritage of the Chinese People's Republic, these two parties, on June 2005, have reached the following agreement:
Article 1
1. The two parties decided to establish a combined Italian-Chinese Work Group (Work Group) for the protection of the Cultural heritage, which will guide and coordinate the collaboration between Italy and China in the areas of the protection of the cultural heritage and the administration of the museums. In order to coordinate, plan and organize the activities of the Work Group the two Countries have chosen the following departments: Italy: Research, Innovation and Organization Department of the Ministry of Cultural Heritage. Chinese People's Republic: Foreign Relations Department of the State Administration for the Cultural Heritage.
299 Complete translation on file with author. The author wishes to thank Gianluca Gentili of the University of Florence and the University of Sienna, Italy for his assistance with the translation. While every effort is made to ensure the accuracy of this translation, due to the complexities of language translation, portions may be incorrect. The Author, therefore, accepts full responsibility for the accuracy and reliability of all translated material.
898 U. Pa. J.Int'l . L. [Vol. 29:4
2. Task of the Work Group:
1) The Work Group, according to the decision take by the National Departments, will identify the programs of exchange and collaboration of common interest.
2) The Work Group will then further define the collaboration and exchange proposals, including visits to the respective administrative Departments, conferences, relations between the agencies involved in the areas touched by the cooperation; the Work Group will then foster the exchange of information and the organization of scientific meetings and exhibitions.
3) The Work Group will provide information, and guide about the exchange and cooperation programs, and, at stated times, will draw official reports about the activities and developments made.
4) The Work Group, in long-term perspective, will coordinate the activities of the respective Departments and the other organizations and administrative bodies involved in the areas which fall under this Memorandum and will suggest and promote related projects and events.
3. Members of the Work Group:Chiefs of the Work Group will be the Head of the Research,Innovation and Organization Department of the Italian Ministry ofCultural Heritage and the General Director of the Foreign RelationsDepartment of the Chinese State Administration for the CulturalHeritage.
Other Italian members: 1 officer in charge for international relations (the head of the Office for international Relations at the Research, Innovation and Organization Department); the General Director of the Technological Research Department of the Ministry of Cultural Heritage; 1 liaison officer chosen among the officers of the Research, Innovation and Organization Department.
Other Chinese members: 1 officer among those working at the
Foreign Affairs Office in the Chinese State Administration for Cultural Heritage; the Director or the International Relations office of the Same administrative body; 1 liaison officer chosen among those working at the Foreign Relations Department of the Chinese State Administration for Cultural Heritage.
The two respective liaison officers will coordinate and take care about the communications between the two parties inside the
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Work Group. Timely communication must be given in any change in the person working as a liaison officer of both the parties.
The Work Group should meet at least once a year, one time in Rome and one in Beijing, with a calendar decided by both parties, in order to revise the programs of exchange and collaboration and plan the future activities of the Work Group. A final document should be drafted as a result of the meeting.
Article 2 The two countries have decided to collaborate in the following areas:
1) Fight against the theft, smuggling and any kind of illicit transaction involving works of art.
2) The two parties will coordinate their effort in developing modem rules and regulations protecting their cultural heritage, especially through the exchange of information and support given to their respective Parliaments in the process of drafting these rules.
3) Aerial Archaeology: the parties will identify common projects in which the Italian knowledge in the field of aerial archaeology will be used to protect Chinese historical sites, during the development and building of infrastructures on the Chinese territory.
4) Computerization of the records, documents and files regarding cultural heritage.
5) Protection of works of art made of paper and oil paintings.
6) The parties will cooperate during the activities of resaturation regarding the Hall of Supreme (Highest?) Harmony in the Forbidden City and those regarding the Great Wall of China at Badaling.
Article 3 The present Memorandum of Understanding will be in effect for a period of five years. If none of the two parties will give notice to the other party, at least six month before the expiration date of the MoU, of its will to terminate this kind of agreement, the agreement will be automatically renewed for five more years.
Signed in Beijing on January 20, 2006, in two parts, with respectively Italian and Chinese language, having the same meaning and effect.
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State Administration of Cultural Heritage for the Chinese People's Republic Shan Jixiang
Ministry of Cultural Heritage of the Italian Republic Rocco Buttiglione
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APPENDIX 4. 9/29/2003 THE 43RD MEXT ORDINANCE
Country Republic of Turkey Republic of Turkey
Kind Bible (Manuscript of a Craftwork (Cross
bible) Silverwork)
Name
Institution Dyberburc/Criac ancient Dyberburc/Criac ancient
Virgin Mary Church Virgin Mary Church
Owner -
Date article 1/7/2003 1/7/2003
was stolen
Feature One book. 43 x 31 x 8 Two. Each one of them is
centimeters. Page 466. It 27 x 13 centimeters, both.
is covered with black Maria and an angel are
leather. A silver board of drawn on one side of one
43 x 29 centimeters is cross. Crucified Jesus
fitted in the surface. Christ is drawn on
Crucified Jesus Christ is another side. 4 apostles
described in the center and 4 red stones are
with Saint Maria with the drawn on a part of each
Virgin Mary standing in arm of a cross. On
his both sides. For the another cross, crucified
edge, a believer of God Jesus Christ and a red
whom there is with an stone are drawn on only
evangel and King is one side.
drawn on the four
comers with relief. A
silver board is attached to
a book with a nail.
Date of 9/29/2003 9/29/2003
appointment
Recitals:
1.
The name of a country to advocate in the first row is a name of the country where the institution, where cultural property which is appointed as Specified Foreign Country's Property were stolen, is located (It means an institution to prescribe to Article 7 (b) (i) of Treaty relating to the means to prohibit and prevent the moving of illegal import and the export of cultural Property and the ownership).
2.
The second row contains cultural property appointed as Specified Foreign Country's Cultural Properties of a picture, a sculpture, an industrial art object, a book trace, classical books, ancient documents, an archaeology document, history document, etc.
902 U. Pa.J. Int'l . L. [Vol. 29:4
3. A name to advocate in the third row of cultural property appointed as Foreign Country's property. An institution advocating it in the fourth column is an institution to be prescribed at No 1 of this recital where cultural property is appointed as Specified Foreign Country's Cultural Property were stolen.
5.
An owner advocating it in the fifth row is an owner of cultural property appointed as Foreign Cultural Property.
6.
The time of theft to advocate in the sixth row is the time that cultural property, which is appointed as Specified Foreign Country's Cultural Properties, were stolen from an institution which is prescribed at the first recite.
7.
In the seventh column is a future of color, dimensions, weight, materials, shape, and others of Cultural Properties which is appointed as Specified Foreign Country's Cultural Property.
8.
A date of appointment to advocate in the eighth row is the date appointed as Foreign Cultural Property.
http://digital.law.washington.edu/dspace-law/bitstream/handle/1773.1/728/12PacRimLPolyJ315.pdf?sequence=1
THE CULTURAL PROPERTY LAWS OF JAPAN:SOCIAL, POLITICAL, AND LEGAL INFLUENCES
Geoffrey R. Scott t
Abstract: Japan's Law for the Protection of Cultural Properties has been heralded as one of the most sophisticated and complete statutes of its kind and has been viewed as a model for other countries considering means to protect their ethnographic and cultural treasures. This Article examines the social, cultural, political, and legal influences antecedent to the promulgation of the statute and discusses the complexities inherent in composing legislation of this sort. The specific Japanese legislative and administrative efforts undertaken to protect national treasures prior to promulgation of the statute, and the political environment contemporaneous with its passage, are compiled, analyzed, and provided to the western audience. Perhaps ofgreater significance, however, the influence of the West, and particularly the United States and its citizens, upon the Japanese efforts to protect cultural property is examined through the use of archival U.S. Government documents of the Arts and Monuments Division of the Supreme Commander Allied Powers composed during the occupation ofJapan. Finally, from a pragmatic perspective, this Article analyzes and explains the legal reasons why it is currently difficult for Japan to join in the international efforts ofthe United Nations Educational Scientific and Cultural Organization ("UNESCO") and International Institute for the Unification ofPrivate Laws ("UNIDROIT") in the global protection of cultural treasures, the strong domestic protection of such properties notwithstanding.
I. INTR O D U CT ION .............................................................................................................................. 3 16
II. THE CULTURAL, POLITICAL, AND SOCIAL MILIEU OF JAPAN THROUGH 1945 AND ITS EFFECT UPON THE PROTECTION OF CULTURAL PROPERTY-A MOVE FROM INSULARITY TOWARD WESTERNIZATION AND NATIONALISM ........................................................................................... 319
A. The Early Threatto Powerand Autonomy andJapan'sChosen Response ofInsularity.............. 319
B. The DoorBegins to Open.............................................................................................................. 323
C. Th e Me ii P eriod ........................................................................................................................... 32 7
1.
The Effect on the Legal Tradition........................................................................................ 327
2.
The Revolution of Westernization in Art and Culture.......................................................... 331
a.
The Declineof IndigenousA rt.................................................................................. 331
b.
The R ise of Western Influence................................................................................... 334
D. A Growing Trend ofNationalism and The Leadership ofFenollosa and Okakura ...................... 335
1. Fenollosa Enters Upon the Scene ........................................... 335
2.
Okakura Follows .................................................................................................................. 338
3.
Fenollosa and Okakura Collaborate................................................................................... 340
4.
The Movement After Fenollosa and Okakura ...................................................................... 344
Ill. LEGISLATIVE ANTECEDENTS TO JAPAN'S LAW FOR THE PROTECTION OF CULTURAL PROPERTY ..346
Professor of Law, The Dickinson School of Law of the Pennsylvania State University. The author would like to express his appreciation to Sawaka Nagano, Esquire, Tokyo, Japan and Christine Guth, Art Historian, University of Pennsylvania for their assistance during the early stages of this project. The author also thanks Karen E. Maull, Esquire, Philadelphia for her insight and support. Finally, the author would like to acknowledge all the legal historians-referenced or not-who have contributed to the understanding of this topic. He is truly indebted to all those professional historians who preceded him and who have pioneered the historical factual research.
IV. THE PERIOD OF OCCUPATION-ITS INFLUENCE ON THE CULTURAL PROPERTY PROTECTION A CT OF 1950 .................................................................................................................................. 352
A. The A &M Branch and Its Personnel......................................................................................... 354
B. The Medium ofInfluence ofSCAP and A&M ........................................................................... 358
C. The Business ofArts and Monuments .......................................................................................... 363
D. The Factors Callingfor a New Japanese Commitment to Protect Cultural Property .................. 364
I. Taxation, Black-Market Sale and Other Transfer and Exportation Issues.......................... 365
a. The Property and Sales Taxes ................................................................................ 365
b. The Estate Tax ................................................................................................................ 369
c. Sale to Purchase Necessities .......................................................................................... 369
d. Theft and Vandalism ....................................................................................................... 3 70
e. Vagrancy and Fire.......................................................................................................... 3 72f Use byAllies ................................................................................................................... 3 74
g. The Attitudes ofthe Population and Government to Art and Cultural Property ............ 375
V. THE 1950 LAW FOR THE PROTECTION OF CULTURAL PROPERTIES AND SPECIFIC ACTIVITIES OF THE ARTS AND MONUMENTS BRANCH OF SCAP ...................................................................... 379
V I. CON CLUSION ................................................................................................................................. 387
APPENDIX I: COMPILATION OF VARIOUS CULTURAL PROPERTY PROTECTION LA WS O F JAPAN ........................................................................................................................ 389
I. G ENERAL GOVERNM ENTAL LAW S ................................................................................................. 389
II. LAWS REGARDING PRESERVATION OF NATURAL TREASURES ....................................................... 389
III. LAWS REGARDING PRESERVATION OF REGISTERED IMPORTANT ART OBJECTS ............................ 390
IV. LAWS REGARDING PRESERVATION OF HISTORIC SITES, SCENIC SPOTS AND NATURAL HISTORY
390
P R ESERVES ....................................................................................................................................
V. MISCELLANEOUS LAWS REFERRING TO PRESERVATION ................................................................ 392
APPENDIX II: LAW FOR PRESERVATION OF HISTORIC SITES, SCENIC SPOTS AND NATURAL HISTORY PRESERVES, LAW NO. 44 (1919) ............................................. 394
APPENDIX III: THE NATIONAL TREASURES PRESERVATION LAW OF 1929 ........................... 396
APPENDIX IV: LAW FOR PRESERVATION OF IMPORTANT ART OBJECTS, LAW N O .43 (1933) ............................................................................................................ 401
I. INTRODUCTION
Japan's Law for the Protection of Cultural Properties has often been heralded as one of the most sophisticated and complete attempts of its kind. Initially promulgated on May 30, 1950, it became effective on August 29, 1950.' Although amended in limited part, it retains its original and essential
Bunkazai Hogo-hO [Law For The Protection of Cultural Properties], Cultural Affairs Protection Department, Agency for Cultural Affairs, (1950) (Japan) (most recent English translation published Oct. 1996). For a brief overview of the Law, see also BARBARA E. THORNBURY, THE FOLK PERFORMING ARTS: TRADITIONAL CULTURE IN CONTEMPORARY JAPAN 55 (1997), which provides:
Since the passage of the Cultural Properties Protection Law (Bunkazai Hogo-h6) in1950, the word "cultural property" (bunkazai) has come to be frequently encountered in arange of places and circumstances: at historical sites, in museums, in the pages of programs
statutory integrity. The statute is of more than national import and influence. In testimony to its statutory merit, commentators have referenced the effort as an influential model for the legislation of other countries.2 The statute did not, however, arise spontaneously. Rather, it has a long and venerable social, political, and legal history.3 It finds its proximate catalyzing influence in the occupation of Japan by Allied Forces from 1945 through 1952, and its more remote antecedents in the culturally revolutionary Meiji Period. To truly appreciate the significance of the grand statutory effort and to properly assess its paradigmatic value, it is imperative that one become acquainted with the social, cultural, political, and legal antecedents and the context in which the statute arose. In breach of this approach, the law may actually serve as nothing more than a collection of symbols on a page to be infused with the contemporary ethnocentricity of the individual reader. Should this occur, there would follow the substantial risk that inaccurate interpretations, improper inferences, and unfortunate missteps might follow. 4
Unfortunately, little is actually available, particularly in the West, that illuminates the milieu surrounding the statute and its promulgation, and an effort to compile such information is no easy task. Much of the direct, relevant information has been essentially inaccessible to persons in the West who have chosen to comment on the protection of cultural properties. This is the result of
distributed at folk performing arts events. Designation as Bunkazai signifies official
recognition ofcultural importance, with selections being made at the national, prefectural, and local government levels on the recommendation of scholars and specialists. Bunkazai are the focus of official efforts to protect and conserve Japan's cultural heritage.
The law, as it stands now, identifies five major classes ofcultural properties. They are: tangible cultural properties (yukei bunkazai), which include paintings and sculptures; intangible cultural properties (mukei bunkazai), comprising theater, music, and applied arts; folk cultural properties (minzoku bunkazai), among which are the folk performing arts; monuments (kinenbutsu), a broad category that includes manmade and natural sites as well as plants and animals; and traditional building groups (dentotekikenzobutsugun).
On the national level, the provisions of the law are carried out by the Agency for Cultural Affairs within the Ministry of Education. The agency works with the Council for the Protection of Cultural Properties and the committees that annually select the nationally designated important cultural properties in each category.
Id. at 55-56; see also CULTURAL PROPERTIES LAW, 2 KODANSHA ENCYCLOPEDIA OF JAPAN 8 (1983). Balma Niec, LegislativeModels ofProtectionofCulturalProperty,27 HASTINGS L.J. 1089 (1976). Yoshiaki Shimizu, Japanin American Museums-But Which Japan?,83 ART BULL. 123 (2001).
Such misunderstanding seems to have occurred in the limited analytical literature that exists on the
subject. SeegenerallyChester H. Liebs, ListingsofTangibleCulturalProperties:ExpandedRecognitionFor Historic Buildings in Japan, 7 PAC. RIM LAW & POL'Y J. 679 (1998); C. FRANKLIN SAYRE, CULTURAL PROPERTY LAWS ININDIA AND JAPAN 851 (1986). These articles provide a cursory review of the protection of
cultural properties. They are the only two articles that appear to address the subject. Both articles and news reports ofthe day indicate that the fire at Horyu-ji was the event that precipitated the passage ofthe Law. Also, interviews with Ministry ofCulture officials in Tokyo indicate a perspective that the United States had little influence in the passage of the Law. Neither view seems complete, as will be discussed herein.
several phenomena. First, a great deal of the original primary material, as well as the contemporary supporting administrative documentation, is solely in Japanese. 5 The Agency for Cultural Affairs, a Division of Japan's Department for Education, is the administrative organ charged with the responsibility of overseeing the cultural property law. While the Agency does offer an excellent website in English, 6 it is limited to expressing general policies and setting forth budgetary allocations. The Agency will provide, upon request either directly to its offices or indirectly through its diplomatic representatives, hard copies of a
limited number of documents. The available documents include an overview of Japan's policies for the protection of cultural properties as well as a copy of the current cultural property law. 7 In large part, however, the available documents are substantially duplicative of the website.
Second, the historical and contextual documentation is scattered in diverse archival locations and is not generally organized in a way that offers easy access to scholars. Third, a great amount of experiential information resides only in the memories of the participants. Many are deceased and left no record of their experiences. Others followed disciplines other than the law, including art history, and failed to report on legally significant considerations. These scholars, with their understandably academic predispositions, made selective decisions, colored by these predispositions, about what was important to report. As a consequence, commentary in the subject area has invited historical speculation and interpolation, and much data relevant to a legal understanding has not heretofore been available.8 Fourth, while scholars in art history have intuitively sensed and frequently acknowledged the importance of a contextual legal analysis, they have either perceived themselves as lacking the necessary legal perspective or perhaps, more importantly, have expressed the viewpoint that, should they undertake the relevant inquiries, they might be found offensively indelicate by their Japanese patrons. The feared result is that avenues relevant to their professional investigation in art could be closed to them.
This Article is the first in a series that addresses the Japanese experience
BUNKAZAI HOHO TEIYO (Bunkacho ed. 1973). See also BUNKAZAI HOGO H1oTO TOUROKU SEIDO NO
KAISETSU.
6 Agency for Cultural Affairs, at http://www.bunka.go.jp (last visited Feb. 28, 2003).
7 From time to time, the Japanese National Commission for Protection of Cultural Properties has also published documents ofassistance in the area ofunderstanding cultural properties protection. While helpful in understanding the various laws and policies, the available documents, unfortunately, are not always kept current. An example ofa document that provides a good historical overview and a copy of the 1950 statutes, as unamended, is Administration for Protection of Cultural Properties in Japan, National Commission for Protection of Cultural Properties (1962 NCPCP Tokyo, Japan).
8 Sherman Lee, My Work in Japan:Arts andMonuments,1946-1948,in THE CONFUSION ERA, ARTAND CULTURE OF JAPAN DURING TIlE ALLIED OCCUPATION, 1945-1952, at 91 (Mark Sandier ed., 1997).
with respect to the treatment of its cultural treasures, as well as in other
countries that have taken significant steps in protecting such property. This Article attempts to (1) discuss the dynamic social, cultural, and political antecedents that precipitated Japan's cultural property laws before the surrender of Japan to Allied forces in 1945; (2) explain and analyze the legal and legislative antecedents to the current law through 1945; (3) describe and analyze the political and legal dynamics of the Occupation of Japan from 1945 that led to the promulgation of the law in 1950; and (4) discuss the events specifically proximate to the promulgation of the 1950 law as well as the role played by the Allied Forces in its composition and passage. In this context, the considerable influence that the United States had on the composition and passage of the statute may be surprising to some, given the lack of comprehensive protection for its own cultural and ethnographic treasures. 9
II. THE CULTURAL, POLITICAL, AND SOCIAL MILIEU OF JAPAN THROUGH 1945 AND ITS EFFECT UPON THE PROTECTION OF CULTURAL PROPERTY-A MOVE FROM INSULARITY TOwARD WESTERNIZATION AND NATIONALISM
A. The Early Threatto Japan's PowerandAutonomy andJapan's Chosen Response ofInsularity
To understand the Japanese treatment of cultural property, it is important to consider trends in Japanese history that influenced its national self-image.
For centuries prior to the Meiji Period, Japan had assumed a policy of isolationism. This posture was a response of the then feudal government to what it perceived as the ambitions of European aggrandizement. The late
fourteenth and early fifteenth centuries were a time of ambivalent Japanese leadership. While interested in foreign trade so long as it held the promise of riches and power, Japanese authorities were also confronted with threats to their supremacy by the ambitions of their foreign trading partners. These challenges took the form not only of the direct demands of merchants who threatened to withdraw trade if they were not given adequate control of the engines of commerce, but also the indirect influence of Christianity upon the indigenous population.
In that regard, Hideyoshi, a sixteenth century political master of Japan,
For an excellent review of U.S. cultural property laws see, Patty Gerstenblith, Identity andCultural Property: The Protectionof Cultural Property in the United States, 75 B.U.L. REV. 559 (1995); Marilyn Phelan, A Synopsis ofthe Laws ProtectingOur Cultural Heritage,28 NEW ENGLAND L. REv. 63 (1993).
came to perceive foreign traders as imperialistic and land hungry. 10 He also viewed the missionaries' interest as presenting a threat to his security. 1 As a consequence, he issued a decree in 1587 prohibiting the dissemination of Christian tenets. 12 His reserved perspective was further inculcated by the San Felipe affair of 1596.13 Commentary concerning the affair observes a precipitating event:
Infuriated by the officious and high-handed treatment of the officials who had confiscated the cargo of the Spanish galleon, a member of the crew boasted defiantly that Spain's method of empire building consisted of sending out missionaries and traders to new lands followed by troops who rapidly conquered and
annexed them to her vast empire.14
Attempts thereafter to separate the advantages of trade from the disadvantages of religious interference and the competitive rivalry of missionary groups were deemed unsuccessful and the Tokugawa Shogunate ultimately banned Christianity in 1612. As a corollary, converts were ordered to renounce their
10 CHrrOSHI YANAGA, JAPAN SINCE PERRY 6 (1949).II Id.12 Id.
13 id.14 id.15 See W. G. BEASLEY, THE JAPANESE EXPERIENCE 147 (1999), which provides:
The first Christian missionaries to arrive in Japan were three Jesuits, ofwhom one was Francis Xavier, brought to Kagoshima in a Chinese junk in 1549 .... In 1563, in what was to prove a key event in the history ofChristianity in Japan, the converted Omura Sumitada, daimyo of part of Hizen in the northwest of that island. He allowed them to settle in Nagasaki in 1571; ordered compulsory conversion of the population in his domain in 1574; and put Nagasaki under Jesuit jurisdiction in 1580 ....
This success owed as much to the religion's commercial as its doctrinal appeal. The Kyushu daimyo, anxious to protect their share ofthe trade with China, had taken note of the respect in which Portuguese captains held the Jesuits. It appeared to them that to tolerate Christianity, or to show it favor, was a way of attracting Portuguese ships to Kyushu ports ....
The Kyushu campaign gave Hideyoshi his first personal knowledge of affairs in that region, including those related to Christianity. As overlord, he objected to the administrative role of the Jesuits in Nagasaki, was alarmed by their interventions in local politics and was
offended by tales of their intolerance to other religions ....
On 24 July 1587, as soon as the Satsuma campaign ended, Hideyoshi issued a decree ordering Christian Priests to leave Japan .... In another decree the previous day, he had banned the practice of mass conversion .... Starting in 1593, however, Dominican and Augustinian friars from Manila began to arrive in Japan. Confident of Spanish protection, they preached openly, in disregard ofHideyoshi's orders .... Annoyed, Hideyoshi gave the foreigners a sharp reminder of his wishes. In February 1597, twenty-six Christians, including three Jesuits and six Franciscans, were crucified in Nagasaki. It was the opening
faith.'6 In 1636, individuals and ships were prohibited from going abroad. 17 Further, as it had proved impossible to separate the influences of commercial activity from spiritual evangelism, particularly that of the Portuguese at Nagasaki, all Europeans except the Dutch were expelled from Japan in 1639.18 From that point, for almost 200 years, the doors of Japan were closed to outsiders.
The countries of the West, however, had other desires. Following the Revolutionary War, for example, the United States desperately needed to resuscitate its exhausted economy. Whaling in the north Pacific, the developing fur trade in the West, and increasing interest in trade with China drew America's attention.' 9 The success of the industrial revolution required that new markets for goods be developed. Trade with the East promised one
means by which to quench the thirst for economic expansion.20
The first actual attempt to open relations with Japan was taken by the private firm of Olyphant and Co. of Ohio in 1837.21 Seven Japanese sailors shipwrecked in Macau were given refuge on the company's ship, the Morrison, and the company seized the opportunity to try to repatriate the men and simultaneously open negotiations for trade. Upon arrival in Japan, however, the Shogunate refused to deal with the company and opened fire on the ship. 2
Economic and political interest in Japan continued unabated and President Fillmore, upon the urging of his advisors, set out to conclude a commercial treaty with Japan. In pursuit of this end, Commodore Matthew
move in what was to become a full scale persecution under the Tokugawa.
Id.at 147-49. See also CONRAD SCHIROKAUER, A BRIEF HISTORY OF CHINESE AND JAPANESE CIVILIZATIONS 314 (2d ed. 1989).
The Japanese saw Christianity as potentially subversive, not only of the political order, but of the basic social structure, for it challenged accepted values and beliefs .... Its association with European expansionism posed a threat from abroad .... Thus the motivation for the government's suppression of Christianity was secular not religious.
Id. at 319. :6 YANAGA, supranote 10, at 8.
'7 id.
18 SCHIROKAUER, supra note 15, at 8, provides:
Because of the practical impossibility of drawing a line between religious and commercial activities, particularly as carried on by the Portuguese at Nagasaki, the authorities came to the conclusion that it was best to exclude all Europeans except the Dutch, who alone had not shown any interest in the propagation of Christianity.
19 See, e.g., YANAGA, supranote 10, at 11 -13.
21 Id. at 12-19.
21 id.
22 HUGH CORTAZZI, THE JAPANESE ACHIEVEMENT 176 (1990).
Perry was appointed in 1852 as a special envoy to the country for the purpose of communicating the interest of the United States.23 At the direction of the President, Acting Secretary of War Charles M. Conrad issued instructions to Perry that included the following observations:
Recent events-the navigation of the ocean by steam, the acquisition and rapid settlement by this country of a vast territory on the Pacific, the discovery of Gold in that region, the rapid communication established across the Isthmus which separates the two oceans-have practically brought the two countries ofthe east in closer proximity to our own; although the consequences of these events have scarcely begun to be felt, the intercourse between them has already greatly increased and no limits can be assigned to its future extension. 24
During the summer of 1853, Commodore Perry arrived with his "Black Ships" in Edo Bay near Uraga with a missive from President Fillmore. It firmly called for an agreement providing for fair treatment of shipwrecked seamen, the opening of ports, and commercial intercourse between the countries. 25 Upon his individual initiative, Perry added a personal message to the effect that a failure26to receive the peaceful overtures would occasion a forceful U.S. response.
Despite having been informed by Dutch King William II of the impending arrival of the American expedition, the Japanese exhibited surprise and panic upon Perry's arrival.27 Presented with responses purportedly designed to delay or discourage delivery of President Fillmore's message to the Shogun, Perry presented a show of force to effect his mission.28 The Shogunate capitulated, received the message, and requested time for deliberation. 29
Meanwhile, Russia had become aware of the interests of the United States, and, in the fall of 1853, dispatched an emissary, Admiral Putiatin, for the purpose of concluding a trade treaty with Japan. Although Putiatin was forced to depart Japan prior to effecting a treaty, the information of his presence
23 YANAGA, supra note 10, at 18.
24 TYLER DENNETT, AMERICANS INEASTERN ASIA 262-63 (1922).
25 CORTAZZI, supranote 22, at 176.
26 id.
27 For a Japanese historical view of the arrival ofPerry and other important events, see Shunsuke Kamei,
The SacredLandofLiberty: Images ofAmerica in Nineteenth Century Japan,in MUTUAL IMAGES: ESSAYS IN AMERICAN-JAPANESE RELATIONS 55 (Akira Iriye ed., 1975). 28 YANAGA, supra note 10, at 18. 29 CORTAZZI, supranote 22, at 176.
precipitated Perry's early return.30 In March 1854, the Treaty of Kanagawa was secured.3' It called for amity and friendship between Japan and the United States, as well as the opening of the ports of Shimoda, Hakodate, and Nagasaki.3 z It made no specific mention, however, of commercial intercourse between the countries. The Shogunate was weakened in its resolve by these events,33which proved to be an entering wedge to the opening of Japan to the West.
B. The DoorBegins to Open
In accord with the Treaty of Kanagawa, the United States was entitled to diplomatic relations with Japan. In 1856, it sent Townsend Harris as its U.S. Consul-General to the port of Shimoda. Harris was finally admitted to the Shogun's Castle at Edo in October 1857. Serendipitously, Hotta Masayoshi had been appointed the Senior Minister for Foreign Affairs for the Shogunate at about that time. Hotta proved receptive to the overtures of Harris and attempted to secure the Imperial sanction for an appropriate trade treaty. Unfortunately, the anti-foreign and anti-Shogunate sentiment within the Imperial Court proved too much to overcome. While Hotta was able to secure a pro forma approval of a treaty by the Emperor Komei, the emperor let it be
known that he had been compelled against his will to accede to its terms. 34 Hotta returned to Edo and was told to reconsider the policy.35 In an attempt to respond to the now difficult problem of unresolved diplomatic relations, Ii
Naosuke, a pro-trade member of the daimyo, was appointed Senior Minister by the Shogun lesada.36
Meanwhile, news of the Treaty of Tientsin between China, Britain, and France reached Harris and he immediately relayed the information to the Shogun. Harris also took the opportunity to share with Shogun representatives his opinion that Britain and France would soon be pressuring Japan to open its ports. He simultaneously promised the aid of the United States in moderating any demands they might make on condition that Japan sign a trade treaty with the United States.37
30 Perry had acquiesced to the request of the Shogunate for time to deliberate and had withdrawn to the
China Sea. For an excellent survey of the event of the period, see YANAGA, supranote 10, at 20. 3 CORTAZZI, supranote 22, at 177.
I/d.
33Id. at 176.
34 CORTAZZI, supranote 22, at 178.
35Id. at 178; YANAGA, supra note 10, at 24.
36 See generallyYANAGA, supranote 10; see also CORTAZZI, supra note 22.
37In fact, Article II of the Treaty, as ultimately adopted, states that the "president of the United States at the request of the Japanese government will act as a friendly mediator in such matters of difference as may arise
With the threat of imminent European intervention apparently imminent, on June 20, 1858, Ii Naosuke signed the American-Japanese Treaty of Commerce of 1858, without awaiting the actual approval of the emperor.38 As a result, the 200-year seclusion of Japan abruptly came to an end.39 The Treaty with the United States had been obtained, however, without traditional Imperial sanction and both Naosuke and the Treaty were soundly renounced by the daimyo, the samurai, and royalists.40 Coincidently, there arose the need to select a successor to the sitting Shogun who had fallen ill. lemochi, the thirteen-year-old nephew of the Shogun, was chosen as the fourteenth Shogun.41 Royalists and anti-foreign forces also gathered to denounce this action. 2 A violent purge of those opposing forces was mounted by Naosuke. In retaliation, on March 24, 1860, a band of anti-foreign samurai from Mito and Satsuma intercepted and assassinated Naosuke, while he was on his way to Edo Castle. 3
In the ensuing years, and as a result of the growing dissatisfaction of the samurai and ronin, general acts of violence erupted in Japan directed against foreigners and sympathetic Japanese officials. 4 In fact, when Shogun Jemochi
between the Government of Japan and any European Power." YANAGA, supra note 10, at 26. 38 YANAGA, supra note 10, at 25.
39 Id.
4' Id. at 39.
41 Id. at 40.
42 id. 43 CORTAZZI, supra note 22, at 179. 44 For a summary ofthe political dynamics and consequences preceding the Restoration, see WALTER W. MCLAREN, A POLITICAL HISTORY OF JAPAN DURING THE MEUIjERA 1867-1912 (1916).
The history of the Imperial house from the twelfth century onwards presents an almost unbroken record of misfortune. Emperors were assassinated, deposed, retired, and their power was always overshadowed by that of some military upstart ....
Another development, which followed close upon the rise ofmilitary feudalism, was the changed status of the people. By the Taikwa reforms the free citizens of the kingdom were divided into the ruling and the supporting classes. The proportion between the ruling caste and the unprivileged orders, as distinguished from the slaves, was something like 1 to 200, the formerconstituting about one-half per cent. ofthe free people. The unfree or slaves amounted to about 4 or 5 per cent. Of the total population which numbered in 700 A.D. about 3,000,000 or 3,500,000 people. From these figures itwould appear that the main body of the nation was composed of a peasantry employed in the cultivation of the soil, ofwhich
they owned and occupied small but equal holdings, for which they paid taxes tothe sovereign in rice,silk, and textile products ....But with the growth of military feudalism a startling change took place in their status. The ownership of land passed out of their hands by the process of alienation or commendation to the feudal lords ....Except for the small number of peasants who became members of the warrior class in the beginning, the free citizens of Taikwa were reduced to a condition of serfdom .... Some notable exceptions there were, of course, such as that of Hideyoshi, the son of a wood-cutter, who by virtue of his great military genius worked his way up under Oda Nobunaga, finally succeeding to that great chieftain's position under the title of Taikosama. As a general rule, the peasants became serfs attached tothe soil ofthe feif, supporting by their labor on the land the military
traveled to Kyoto in the spring of 1863, the capital was saturated with anti-foreign sentiment.45 Despite considerable efforts, he was unable to rally moderate forces, and, as a result, lost considerable prestige.
In the fall of 1866, the Shogun lemochi suffered an untimely yet natural death at Osaka Castle.46 Keiki, an advisor of lemochi, thereafter assumed the position of the fifteenth Shogun in January 1867. 47 Within a month, Emperor Komei also passed away and his fifteen-year-old heir, Emperor Mutsuhito, better known by his reign name of Meiji, succeeded him.48 At the same time, plans were mounting to overthrow the Shogunate. Yamanouchi Toyonobu, the former daimyo of Tosa, approached the Shogun Keiki and requested that he surrender his power to the emperor for the sake of national unity.49 A part of the recommendation was that a council of daimyo be formed with Keiki as chairman. On November 9, 1867, the Shogun announced his decision to yield.5 0 Emperor Mutsuhito accepted, and 265 years of Tokugawa rule and seven centuries of feudalism came to an end.51 The Meiji Period catapulted into existence, and a force of dynamic change with its attendant influence upon the protection of cultural property was born.
and ruling class. That such was the outcome ofthe process was proved by the census reports issued shortly after the Restoration. Out of a population of some 31,000,000 in 1870, the ruling class was composed ofabout 280 Daimyo families and 400,000 samurai households, in addition to the 159 families of Court nobles, in all not more than 2,000,000 people ....
But the transformation of the political society of Japan through the rise ofa feudal order ... does not serve to explain the growing hatred of the Western clans for the Shogunate in the period preceding the Restoration. In feudalism anarchy is the ordinary rule. Every chieftain's hand is raised against his neighbour, and might to hold what is possessed is seconded by covetous desire to seize what is another's .... There was in the never-ending strife of feudalism in Japan something of the zest for the game ....
On its political side the Restoration was the product of a reaction, based on superstition and fable in the guise of history, as well as on genuine scientific truth, against the duarchy implied by the existence of the Shogunate ....
It would perhaps be fair to say that without the decline of the virility of the Shogunate by a process of internal disintegration, and a synchronous increase of the military power of such clans as Satsuma, Choshu, Tosa and Hizen ... a successful issue to the anti-Shogunate revolution would have been impossible .... The Daimyo were only nominal rulers of their clans; the real authority did not even lie with the karo, the members of the clan council, but with the yonin, the business men of the fief.
Id.at 24-37. 45 YANAGA, supranote 10, at 42. 46 Id. at 43. 47 Id.at 45.
48 id.
49 Id.50 Id.Si See generallyYANAGA, supranote 10; CORTAZZI, supranote 22.
Emperor Meiji set a tone for his reign by issuing the Restoration Rescript in January 1868,52 and in the spring ofthat year announced the Charter Oath of Five Articles.53 The latter document called for the modernization and westernization of virtually every aspect of national life. The singular purpose
of the overall strategy was to place Japan in a position where it might assume its rightful place in the strong family of nations. The Five Articles were as follows:
1.
Deliberative assemblies shall be established and all matters decided by public opinion.
2.
The whole nation shall unite in carrying out the administration of affairs of state.
3.
Every person shall be given the opportunity to pursue a calling of his choice.
4.
Absurd customs and practices of the past shall be discarded and justice shall be based upon the laws of heaven and earth.
5.
Wisdom and knowledge shall be sought all over the world in order to establish firmly the foundation of the Empire.54
Through repeated expressions of power and influence it had become clear that Japan was no strategic match for European power. Japan, however, aspired to be a world power and desired an equal footing with the countries of
the West. In December 1871, a Japanese diplomatic mission was sent to the United States and Europe for the express purpose of gaining knowledge of the world beyond Japan.55 Additionally, the mission attempted to set a tone that might lead to an improvement of treaty relations with the United States. Little amelioration of the treaty provisions were, in fact, secured. However, Japan became acutely aware that it would be forced to acquire an understanding of western learning and custom if it were to be able to compete successfully. 56 As a result, a trend began in Japan to assimilate western civilization. The hope and
expectation was that, were the country to assume the mantle of western civilization, it would be permitted to deal with the world powers of the day as an equal partner. This realization ultimately led to the dramatic reforms of the Meiji Period.
52 YANAGA, supranote 10, at 45.53 CORTAZZI, supranote 22, at 185.54 YANAGA, supranote 10, at 48; CORTAZZI, supra note 22, at 185.
51 CORTAZZI, supranote 22, at 187.
56 Id.
C. The Meiji Period
1. The Effect on the Legal Tradition
Japan's first introduction to foreign law was the volume entitled A Treatiseon Western PublicLaw.57 Authored by Tsuda Mamichi and published in 1868, the first year of the Meiji Period, the text was based upon notes taken while he had attended lectures at the University of Leyden. 58 In 1876, Tokyo University College of Law, the successor to the Kaisei Gakko, was established. 59 It would later become the Imperial University of Tokyo.60 Instruction at the University College was initially limited to Anglo-American private law subjects including contracts and torts. A second law school, that of the Department of Justice, opened its doors the same year and offered training in the French civil law tradition with a focus on civil and commercial law. The professors at the various institutions were from Britain, France, and the United States, and lectures were usually given in English or French.61 In 1886, the Imperial University of Tokyo was founded and its initial curriculum comprised three distinct fields of study in English, French, and German law. 62 It was not until after the promulgation of the Japanese Constitution of 1889 that attention would turn to the teaching of public law subjects.
The movement toward westernization had taken hold among the governmental legal institutions of the day as well.63 When first constructing
57 YANAGA, supra note 10, at 78.
58 Id. See generally 10 JAPANESE CULTURE IN THE MEIJI ERA, OUTLINE OF JAPANESE HISTORY 345
(Naoteru Uo & Richard Lane eds., 1958) [hereinafter OUTLINE OF JAPANESE HISTORY]; W. G. BEASLEY, THE RISE OF MODERN JAPAN 91 (1999).
59 HIDEO TANAKA, THE JAPANESE LEGAL SYSTEM 179 (Hideo Tanaka ed., 1976). English law had been taught at the Kaisei Gakko in Tokyo. According to Tanaka, the institution passed through a number of incarnations. Id. From 1877 (or some authors suggest 1876)to 1886 it was called the University ofTokyo or The Tokyo University. Thereafter it was known, in succession as the Imperial University and Tokyo Imperial University. Finally, after World War II, the name University of Tokyo was revived.
60 COUNT SHIGENOBU OKUMA, II, FIFTY YEARS OF NEW JAPAN 166 (1909).
61 From early Meiji times there had been a law school attached to the Ministry of Justice in which French law was taught. Two or three private law schools also taught French law. Biossonade, who came to Japan in November 1873 and began to teach French law in 1874, was an outstanding figure. TANAKA, supranote 59, at
178.
62 YANAGA, supra note 10, at 79.63 W. G. Beasley, Forewordto PAUL HENG-CHAO CH'EN, THE FORMATION OF THE EARLY MEuI LEGAL
ORDER, THE JAPANESE CODE OF 1871 AND ITS CHINESE FOUNDATION (1981) [hereinafter CH'EN]:
There was ... one crucial factor making for the introduction of Western law in this period, namely, Japan's wish to revise the unequal treaties imposed upon her by the powers in 1858. One feature of these treaties was the requirement that in Japan, as in China, foreign residents should be subject to the law of their own countries, administered in consular courts. To put Japan's relations with the West on a footing of equality would involve terminating this arrangement. Yet, given Japan's inability to insist upon change, in view of the great
their new legal system, the Japanese were influenced by the French civil law system, and-pursuant to that interest-an initiative was commenced in 1870 to translate the French Civil Code into Japanese. 64 An advisor and French legal expert, Emile Gustave Boissanade de Fontarabie, was asked to consult in composing the Civil Code and was charged in 1877 with drafting the first Criminal Code and Code of Criminal Procedure. 65 The Criminal Code was adopted in 1880 with the intent that it would become effective in 1882.66 The Criminal Code remains the foundation of Japanese criminal law to this day.67 Boissanade had also been consulted in 1881 with regard to the drafting of a
Civil Code.
disparity of strength between herself and the powers, this could only be done with Western acquiescence. To secure it would necessitate bringing the country's law, penal system and judicial organization into sufficient line with Western practice to make them acceptable to foreigners .... Eventually, the nature of the law changed, too. In 1882 a criminal code was introduced, based on that of France, heralding a shift of emphasis that was ultimately to make the traditional, both Chinese and Japanese, secondary to the modem and Western.
Id. at x-xi. Ch'en also notes throughout his book that the impact of the Chinese legal tradition was dominant until the end of 1881 when it was replaced by a variety ofEuropean traditions. Id. atxx; see also HIROSHI ODA, JAPANESE LAW (2d ed. 1999) providing:
There was another reason to develop a modem system of law. The Shogunate had no choice but to sign the treaties with foreign countries at the end of its reign. These treaties had imposed unequal terms on Japan, such as judicial immunity for foreigners, primarily because the Japanese legal system was thought to be insufficiently developed to be applied to them. Japanese rulers considered it necessary to modernize the legal system in order to convince foreign countries that there was no problem in acknowledging Japanese jurisdiction over foreigners in Japan.
The emperor's government initially resorted to Chinese law .... However, the... Chinese codes proved to be obsolete and unsuitable for a nation aspiring to achieve equal status with European countries in its economical and military strength. It was only natural that political leaders turned to Europe for a better model.
Id. at 26. 64 See generally TANAKA, supra note 59, at 163; see also ODA, supra note 63, at 24.
In fact, despite its long isolationist policy, some European political and legal ideas were already known to the Japanese under the Tokigawa Shogunate through the Dutch .... However, it was the French rather than Dutch law which first influenced Japanese law. France was considered to have the most developed codified legal system when the emperor's government started looking for a model in the 1870's. The first Minister of Justice, Shinpei Etoh, was particularly in favor of French law, and had French codes translated into Japanese. Two advisers from France, George Boussquet and Gustave Boissonade, helped the Japanese understand the French system.
Id. at 27. See also CH'EN, supranote 63, at 22.
65 ODA, supra note 63, at 27.
6 id.67 See id.
As far back as 1869 the Government began to form a Civil Code; but, though the Code Napoleon was taken as a model, the delicate task of adapting it to the customs and sentiments of the country did not advance with rapidity. In the meantime a rough sketch of a Criminal Code was drawn up and promulgated in 1870, only to be largely modified after two years, and again a year later, by additions which for the first time showed evident marks of foreign influence. In this code, which has assumed its present form since 1888, one notices that French ideas form a prominent part. The Civil Code would have been largely French, had it not been for a sudden admiration in the later eighties for a newly issued Motiven and Protocol of the German Biirgerliches Gesetz, and hence a large part of our Mimpo (Civil Code) as well as our Sh5hd (Commercial Code) show German influence.
The tide of national systematic influence changed, however, and it was not long before the French legal tradition was de-emphasized in favor of the German civil tradition. 69 Ito Hirobumi, an influential legal scholar, had traveled to Europe in the spring of 1882 to study in Germany and Austria.70 He was reportedly very impressed by his experiences and also by the fact that Germany had won a recent great victory over France.71 A Code of Civil Procedure was ultimately drafted in 1884 by a German advisor and professor, Herman Roessler.72 Roessler was also appointed the advisor to the Committee for the Drafting of the Constitution. Boissanade's Civil Code was not adopteduntil 1888.] A disagreement as to approach had grown between proponents of English and French Law and those of German perspectives, and it was only when an accommodation founded upon German legal principles was
68 OKUMA, supranote 60, at 471-72.69 See ODA, supranote 63, at 27.
This period of French influence did not last long. There was a gradual shift towards German law in the 1880's. The fall of Etoh was not the only cause of this shift; it was the difference between the political systems ofthese countries which really mattered The
.... German constitutional monarchy suited Japanese requirements, since the Kaiser was relatively free from Parliamentary control. Moreover, Germany was in the process of enacting its own codes and therefore had the most recent codified laws. The adoption ofthe Constitution based on the German system was the final move away from French and towards German law.
ld. 70 OUTLINE OF JAPANESE HISTORY, supra note 58, at 345. 71 id. 72 ODA, supranote 63, at 24.
73 id.
incorporated into the law that it was actually made effective in 1898.7 German law had truly gained popularity and influence, and it eventually became the prime template for the then new law of Japan. As commentators have
observed:
German law gradually occupied the controlling position in the world ofjurisprudence. In the field of private law as well, French law, which had been dominant, declined as a result of theoretical controversies. English law met the same fate. German law gained supremacy in both public and private law, and what may be called a period based on German law came into existence.75
A contemporary consequence of this struggle is that Japan is considered a country with a civil law tradition. This historic decision has proved to be of great significance to the current posture of Japan within the world community with respect to the international protection of cultural property. Due to their conceptions of private property, 76 most civil law countries, including Japan,
74 Id. at 27.
" OUTLINE OF JAPANESE HISTORY, supranote 58, at 346.76 The common law tradition has generally taken the position that a thief cannot pass good legal title to a
successor. Therefore, in a contest between the original owner of property and a successor in interest through the thief, the original owner is favored unless the action is affected by the running of a statute of limitations. On the other hand, the civil law tradition accepts that in some circumstances a thief can pass good title to a bona fide purchaser for value. In these countries it is possible for a bona fide successor to a thiefto prevail over the claim of an innocent and original owner. Conventions and arrangements, such as UNESCO and UNIDROIT, tend to favor the return of cultural property to the original owner as opposed to retention by a bona fide purchaser, thereby presenting a conflict to civil law countries between domestic law and required international treatment. As a consequence, few civil law countries find either treaty acceptable.
Following is a translation of the comments of Mr. Kiyoshi Saito, Unit Chief, Traditional Culture Division, Cultural Properties Protection Department, Agency for Cultural Affairs taken from a conversation in Tokyo in August 2000 relating to the subject:
Mr. Matsuura, Chairman of UNESCO, was advocating that Japan become a signatory of the 1970 Convention. Some advocates from around the country argue that Japan should ratify the Convention. The Ministry of Foreign Affairs is one such advocate. However, the government has chosen not to ratify it because the Convention technically interferes with the Japanese law, not because they do not want to support it. Especially in the area of stolen items, the Japanese law stands in the totally opposite position from the Convention. Under the Convention, the true owner would prevail over a bona fide purchaser ofstolen art if he had no knowledge of the theft. Under the Japanese law, on the other hand, the bona fide purchaser would prevail over the true owner. This contradiction is the major reason why Japan did not become a signatory.
In addition, it would take a lot of effort on the part of the Japanese government to find ways to amend the existing Japanese law. In fact, some administrative agencies such as MITI (Ministry of International Trade and Industry), The Ministry of Finance and the Agency of Cultural Affairs, those that would be in charge of enforcement of the Convention if ratified, argue that they would not be able to practically enforce the law.
have found it difficult to become signatories to international regimes likes the
United Nations Educational Scientific and Cultural Organization ("UNESCO")
Convention on the Means of Prohibiting and Preventing the Illicit Import,
Exports and Transfer of Ownership ofCultural Property or to the International
Institute for the Unification of Private Laws ("UNIDROIT") Convention on
Stolen or Illegally Exported Cultural Objects, 1995.7 Therefore, the nineteenth
century jurisprudential decision and the resulting favorable treatment granted to
bona fide purchasers have had consequences extending into the twenty-first
century.
2. The Revolution of Westernizationin Art and Culture
a. The DeclineofIndigenous Art
After the fall of the Tokugawa government in 1867, and under the policies of the Meiji Era, revenues were yielded to the crown, samurai were left without livelihood, merchants had difficulty enforcing claims and consequently
lost their trades, and farmers were crushed by taxes.78
At such a time, Art was bound to be entirely neglected, and in consequence precious works of Art and valuable paintings were prized no more than rubbish. Even when peace and quietness ensued, the people were too occupied with their immediate concerns and too busy adopting the material culture of the West, to attend to anything like Art.7 9
Consequently, the ground was fertile for a developing perspective, particularly among those living in urban areas, that everything Japanese was inferior. Improvement was sought in every aspect ofculture, and improvement denoted westernization. This was expressed through virtually every medium from the choice of hairstyles to lifestyles. For example, beef, a commodity previously regarded as unfit for human consumption, became highly prized, and
Interview with Kiyoshi Saito, Unit Chief, Traditional Culture Div., Cultural Properties Protection Dep't,
Agency for Cultural Aff., in Tokyo, Japan (Aug. 2002). See generallyRALPH E. LERNER & JUDITH BRESLER, ART LAW, THE GUIDE FOR COLLECTORS, INVESTORS, DEALERS AND ARTISTS 201, 545 (1998). See also, Autocephalous Greek-Orthodox Church v. Goldberg & Feldman Fine Arts, Inc., 717 F. Supp. 1374 (S.D. Ind. 1989), aff'd, 917 F.2d 278 (7th Cir. 1990).
77 YANAGA, supranote 10, at 78-79; see also DONALD SHIVELY, THE JAPANIZATION OF MIDDLE MEIJI, TRADITION AND MODERNIZATION IN JAPANESE CULTURE 90 (1971); LYNDEL V. PROTT & PATRICK J. O'KEEFE, HANDBOOK OF NATIONAL REGULATIONS CONCERNING THE EXPORT OF CULTURAL PROPERTY (1988).
78 OKUMA, supranote 60, at 341-42.
79 Id. at 342.
intermarriage of Japanese and Occidentals was strongly advocated as a means of improving Japanese racial stock.80 Western haircuts, jewelry, dress, and even umbrellas became the rage.81
It was, however, arguably in the arts and the visually expressive elements of culture and tradition that the revolution was most evident.82 Japanese aesthetics suffered greatly in the service of the national quest to become a world power.
80 YANAGA, supra note 10, at 97.
81 SHIVELY, supra note 77, at 82; see also,MARILYN Ivy, DISCOURSES OF THE VANISHING, MODERNITY,
PHANTASM, JAPAN (1995). As Naoki Sakai points out, in an essay on modernity and its critique in prewar Japan:
Perhaps the most crucial point the (Japanese) philosophers of world history did not realize was that Japan did not stand outside the West. Even in its particularism, Japan was already implicated in the ubiquitous West, so that neither historically nor geopolitically could Japan be seen as the outside of the West. This means that, in order to criticize the West inrelation to Japan, one has necessarily to begin with a critique of Japan. Likewise, the critique of Japan necessarily entails the radical critique of the West.
Id. at 8. Although referencing the period before 1945, these volumes contain considerable insight into the bonds between East and West that bears notice. See also BEASLEY, supra note 58, at 90-91. See OKUMA, supra note 60, at 444 for a view that it would, in fact, be a mistake to assume that Japanese nationalism and occidentalism were in full opposition. See also Ivy, supranote 81, at 18-19 for a view that the trends in history that are noticed may not, in fact, reflect the sentiment of the people. She provides:
Japanese culture industries and institutions have tended to locate these practices of voice among the folk, the abiding people, the everyday Japanese folks who have existed outside history because their existence is not archival; that is, they are not dependent on history .... The notion of tradition itself already refers to unmediated cultural transmission, and transmission through the voice is the exemplary means of knowledge production within the familial community of nation-culture.
Id. at 18-19.
82 Toshio Watanabe, JosiahConder'sRokumeikan, Architectureand NationalRepresentationin Meyi
Japan, 1996 ART J. 21 (1996) provides:
A national museum, military barracks, and government offices were other examples of buildings urgently needed by the new administration.
There were also ideological reasons behind these needs. Internally, for the Japanese themselves, these new buildings were to embody the authority of a central government that aimed to rule far more directly than had the previous Tokugawa government. Large imposing buildings would impress upon the Japanese people the power and stability of the new regime. To build a modern nation, modem buildings were needed. Externally, for foreigners, these buildings would show that Japan was not a backward nation but a country worthy of being treated as an equal among other developed nations. A national museum would confirm that the nation had a history of high culture and was not an upstart in such matters .... The significant point is that this ideology demanded that these public buildings be built in Western style.
In Tokyo it was proposed that the pine trees surrounding the Imperial Palace be cut down; in other places there were attempts to tear down famous historic buildings and temples so that the lumber and metal might be sold as scrap, and even the famous five-storied pagoda at Kofukuji in Nara was almost sold for only a
few yen by the priests. Things Japanese were considered worthless in the face of the unbelievable popularity of imported foreign goods. Native paintings and art objects were sold for a song, and many priceless treasures were practically given to foreigners.
Renowned Japanese visual artists were also adversely affected. Many became impoverished and were forced to seek work outside of their disciplines. For example, the influence of the hereditary artistic family of Kano was considerably diluted when their stipends were terminated, and Kano Hogai was
forced to abandon painting due to lack of interest in his work. Artists were forced to pursue more mundane tasks to make a living. Hogai turned, unsuccessfully, to silk raising and to drawing designs for a pottery factory. 84 Hashimoto Gaho, a painter and another casualty of this change in national perspective, became a drafting instructor at the Naval training school and
served as a stable groom.85 The official artists of the Tosa school were relieved of their responsibilities.86
The effects were not limited, however, to the traditional fine arts. Craftsman also suffered a similar fate. Their traditional markets disappeared, and the higher the quality of their wares, the less demand there was for them.87 The new market was for "hamamono"--crafts for export. Efficiency in production rather than quality became the concern of government.
:3 YANAGA, supranote 10, at 211.4 Id. at 211-12.
85 SHIVELY, supra note 77, at 206; see also OKUMA, supranote 60, at 344-45, providing:
As to the Kano family, which were once in a most flourishing state, monopolizing the patronage of the feudal government as well as of the clan lords and being their hereditary artists, they were nearly ruined ....So,the school cannot be said to survive. As for the Tosa school, its decadence has been still more thorough and.., it has gone totally out of fashion.
This school, which first originated in depicting the ancient Court life ... has left no more than a trace ina few modem historical paintings.
Id. 86 YANAGA, supranote 10, at 212; OKUMA, supranote 60, at 342, 344. Various schools of art had been
and were formed to follow the style of recognized artists. For a discussion of the various schools and influences, see OKUMA, supra note 60, at 341. " 7 JAPANESE CULTURE INTHE MEIH ERA, JAPANESE ARTS AND CRAFrS INTHE MEIJ ERA 109 (Naoteru Uyeno & Richard Lane eds., 1958) [hereinafter ARTS AND CRAFTS].
The special characteristics of Japanese crafts had always lain in their production by hand, in small quantities, and with emphasis on quality. For exports, however, once a market was found it was necessary to provide uniform goods in whatever amount could be absorbed. The different Japanese crafts responded variously to these requirements: among dyers and potters the change was marked; but lacquer-and metal-workers were most often unable-or unwilling-to adapt their art to mass production.88
Even to this day, some revered artists and craftsmen find it difficult to make a living within their traditional discipline. For example, one living national treasure in the area of woodworking recently found himself laboring to make pool cues for a multinational corporation while another national treasure in calligraphy has been decorating kimonos for a California art dealer.89
b. The Rise of Western Influence
Western art had first been introduced by the Dutch and had received a
rather cool reception. Upon the opening of the country, however, interest surged, and in response the Imperial Engineering College was formed in 1876 and included an art department. The first instructors in the department were the Italian artists Edoardo Chiossone and Antonio Fontanesi (painting) and Vincenzo Ragusa (sculpture), and the focus was upon the study of western artistic technique. 90 Symbolic of the national trend toward westernization, the government adopted a formal policy of dispatching the traditional Japanese brush in favor of the European pencil for use in drawing classes at the elementary education level. 91 The later retrenchment of this policy, taken upon the initiative of Okakura Kakuzo, was to be a significant watershed in the nationalistic art movement.
Erwin Baelz, a German physician who had been invited to teach
Sld. at 110.
89 Interview with Dane Owen, Owner of Shibui, in Santa Fe, New Mexico (June 7, 2002).90 See BEASLEY, supranote 58, at 90:
There was an important visual side to the Japanese learning process, as one would expect, since images are usually easier to comprehend than words. Western art was taught in a special government school from 1876. Though it had long since influenced a number of notable Japanese artists, there is irony in the fact that it became fashionable just when Japan's own art forms were having their greatest impact in Europe.
!d.
91 SHIVELY, supra note 77, at 115.
medicine in Tokyo in 1876, commented upon the Japanese repudiation of its traditions:
In the 1870's at the outset of the modem era, Japan went through a strange period in which she felt contempt for her own native achievements. Their own history, their own religions, their own art, did not seem to the Japanese to be worth talking about and were even regarded as matters to be ashamed of.92
D. A Growing TrendofNationalismand The Leadership ofFenollosaand Okakura
Even as the desire to modernize and westernize began to influence Japanese life, some began to feel that Japan was losing its traditional elements even as it westernized.
The rage for westernization, which led at times to indiscriminate borrowing of all things of western influence, seemed to sweep over and submerge traditional elements during the first two decades of the Meiji period. Then, in about 1887, a riptide of counter-reaction broke the surface. This was the response of both conservative thinkers and also of young progressives to those innovations, which they found too extreme and too rapid, which they feared would effect such a thorough transformation of the Japanese people that they would lose those unique qualities which set them apart from the peoples of other countries.93
In this context two men-an American and a Japanese--emerged to spearhead a movement to preserve and resurrect traditional Japanese culture.
1. FenollosaEnters Upon the Scene
As part ofthe general effort to increase Japanese knowledge of the West, American and European scholars were invited to participate in academic and government affairs as teachers and advisors.94 It was through this initiative to
92 Id.
93 Id. at 77.14 See BEASLEY, supra note 58, at 88, providing:
bring western scholars to Japan, however, that several of the leading figures responsible for stimulating the national awareness of Japanese artistic and cultural achievement entered upon the scene. Professor Edward Morse, a self-taught New England Pofessor of Zoology who had been affiliated with the Peabody Academy of Science in Salem, Massachusetts, accepted an invitation to teach at the Imperial University in Tokyo.95 During his tenure, Morse developed a profound respect for the culture of Japan and for its artifacts, and is
"credited with inspiring the Japanese effort to preserve their national treasures
by controlling their sale to foreigners." 96 His greatest contribution, however, was likely the role he played in encouraging Professor Ernest F. Fenollosa of
Boston to come to Japan in 1878 to teach pilosophy at the University. 97
While in residence in Tokyo, Fenollosa began to study painting under the tutelage of Kano Eitoku, an artist of national reputation. Fenollosa was captivated by indigenous Japanese art and soon became one of its strongest and most vocal supporters. Coincidentally, in 1878, a group named Ryuchikai was formed for the distinct purpose of promoting the preservation and advancement of Japanese art and expression. In 1882, Fenollosa presented a lecture before
The learning process also included the hiring of foreign experts and advisors to serve Japan. The Bakufi had employed about 200 such persons in its closing years, apart from military missions. In the Meiji period as a whole (1868-1912) there may have been as many as 4,000 yatoi, as they were called, of whom a little over 2,000 can be identified by name, job, and national origin. About half of those identifiable came from Britain in the early years, dropping to a third later. France, Germany and the United States each provided on average one-fifth or a little less. The French proportion declining over time, the German and American ones rising ....In most cases it was assumed that they would play a part in training Japanese to succeed them, though this was not their principal task.
A minority were advisors, attached to a variety ofgovemment ministries as specialists in Western ways of doing things. Many ofthese were lawyers. All were on tightly drawn contracts, the terms for which were set out in 1870; were putunequivocally under the control ofJapanese officials; and were dismissed as soon as there were Japanese people competent toreplace them. They received salaries very much higher than those of any equivalent citizen of the country in which they worked ....[T]hey were machines of reform ....
Id.
95 WARREN COHEN, EAST ASIAN ART AND AMERICAN CULTURE 23 (1992).
96 Id. at26. Robert A. Rosenstone, Learning from Those Imitative Japanese:Another side of the
American Experience in the Mikado's Empire, 85 AM. HISTORICAL REV. 572 (1980):
No matter what their roles ... virtually all Americans saw themselves as teachers ofWestern
ways. Usually they arrived ...feeling almost hopeless about how long it would require to civilize such barbarians. This attitude often gave way to the revelation that overtook Morse in Tokyo: a foreigner, after remaining a few months in Japan, slowly begins to realize that, whereas he thought he could teach the Japanese everything, he finds, tohis amazement and chagrin, that those virtues or attributes which, under the name of humaity are the burden of our moral teaching at home, the Japanese seem to be born with.
Id. at 578.97 COHEN, supra note 95, at 27; SHIVELY, supra note 77, at 115.
the Ryuchikai entitled "An Explanation of Truth in Art."98 In the presentation he praised the superiority ofJapanese visual art over the mimicry of the West.99 He urged Japan to return to its roots and promoted the establishment of an art movement emphasizing national traditions, culture and history. Serendipitously, Fukuoka Takachika, the Minister of Culture, and Sano Tsunetami, a governmental official responsible for setting art policy and a drafter of the Charter Oath, were present at the lecture and struck by the message.10 0 The speech was eventually translated into Japanese, and was
01
widely distributed and favorably received. 1In sum, Fenollosa's view was
that, "in a spirit of mutual sympathy and insight, .. . artists and educators should select the best elements of the two (East and West) and thus build an art of the future."'' 0 2 It has been reported that this lecture had a significant impact on the revival of interest in Japanese tradition.'0 3
For those Japanese whose sense of national identity had been seriously undermined by the all-out Westernization of the early Meiji years, Fenollosa's formula suggested a means of restoring Japan's importance that focused not only on Japanese exclusiveness, i.e., the unique Japanese spiritual heritage, but provided that spiritual heritage with a central role in shaping the cultural history of the modem world.10 4
In order that the goal of a national appreciation of Japanese art be realized, Fenollosa offered a three-point program:
1.
The establishment of a school of fine art;
2.
The encouragement and assistance of artists;
3.
The development of the appreciation of art through
05
exhibition.'
The reaction to Europeanism was beginning to gain a strong hand on
98 Watanabe, supra note 82, at 27 ("Ernest Fenollosa's famous lecture Bijutsu shinsetsu (The True
Meaning of Art), published in 1882, was the first serious debate on the concept of art in Japan"). 9 See Fred G. Notehelfer, On IdealismandRealism in the ThoughtofOkakura Tenshin, 16 J. JAPANESE STUDIES 309, 321 (1990).
:0o SHIVELY, supranote 77, at 210.
01Id.
102 The ComingFusionofEastand West, Harpers, XCV11i (1898) 115-22, quotedin SHIVELY, supranote
77, at 205. 103 SHIVELY, supranote 77, at 115. 04 Notehelfer, supranote 99, at 322. 105 YANAGA, supranote 10, at 212.
other fronts, as well. Symbolically, the Imperial College Department of Art closed its doors in 1883.
One reason that led to the abolition of the Art Department in the Imperial Engineering College was the rise of the nationalistic movement in Art .. . [F]or as the real value of native Art, neglected for so long a time, came to be again recognized through the enthusiastic appreciation of foreigners, the awakening reacted on Western Art ... the Government Painting Exhibition stopped accepting Western paintings .... 6
2. OkakuraFollows
While at the University, Fenollosa became acquainted with a young man named Okakura Kakuzo (a.k.a. Okakura Tenshin).10 7 Together the pair were destined to become the leading force in the movement to protect the cultural property of Japan. Okakura had attended Fenollosa's classes in philosophy and had also served as his interpreter. Following his graduation in 1880, Okakura joined the music research section of the Ministry of Education, and, in 1881, Okakura was transferred to the art section, 10 8 a move that would prove to be of significance to the protection of cultural properties.' 0 9 Thereafter, Okakura embarked upon the lifelong task of elevating the sensibilities of the Japanese
:o60KUMA, supra note 60, at 349.
07 Notehelfer, supranote 99, at 320.I" Id. at 319-20.109An interesting and perhaps ironic note is Okakura Kakuzo's ambivalent relationship with the West due
to his upbringing. As Noterhelfer notes:
Starting at the age of six or seven, Kakuzo' began his English studies ....
Some Japanese scholars such as Irokawa Daikichi have emphasized that Okakura could not only write flawless English but that he also thought in English .... [I]t suffices here to underscore that Okakura's early training was almost entirely in English ....
Indeed, one of the few childhood memories that Kakuzo passed on about his father was a trip to Tokyo on which he was allowed to accompany him in 1870. The journey appears to have started joyously but ended in embarrassment. Crossing into Tokyo from Kawasaki, the elder Okakura discovered to his consternation that his son could not read a single Japanese character on the signboards posted at the city limits.
Okakura did not suffer from the prevalent Japanese inferiority complex to the West... Okakura suffered inversely from an inferiority complex toward Japan, the Japanese language and the Japanese portion of his identity.
Notehelfer, supra note 99, at 315-16.
people and bureaucracy to value the Japanese tradition and its cultural treasures.' 10 As Okakura described in his book, The Ideals ofthe East With
Special Reference to the Art ofJapan:
Japan is a museum of Asiatic civilization; and yet more than a museum because the singular genius of the race leads it to dwell on all phases of the ideals of the past, in the spirit of living Adwaitism, which welcomes the new without losing the old. 1 '
Due to this perspective, Okakura has been deemed the symbolic, ifnot actual, leader of the movement to retain classical Japanese elements in art. 112 Eventually Okakura became the head of the Institute of Fine Art, and in that capacity, felt at liberty to issue a report in 1890 positing his views on the future of Japanese art. The report set forth six fundamental principles:
First, while guarding the old traditions and attempting to create a new art, the artist must strive for the expression of his own personality; he will make reference to foreign styles, ancient Far Eastern styles, and to nature itself, but the result must be an assimilation of these elements within the artist's own subconscious.
Second, the ancient techniques must not be lost. For an artist to discard the rich heritage bequeathed him by the masters of the past would simply be to return to primitivity, to start again from scratch; at the same time it must be remembered that study of the ancients is primarily for the purpose of enriching one's own background, never simply for the purpose of imitating them.
Third is the artist's spirit: If the artist is not imbued with passion, how is he to move his viewers? If he is not possessed of exalted sentiments, how is he to lead his viewers above and beyond the actual confines of the paintings?
Fourth is technique. However keen the artist's spirit, without a mastery of technique he must fail to accomplish his purpose. Yet technique must always be subordinated to
10Maruyama Masao, Fukuzawa, Uchimura, and Okakura, Meii Intellectuals and Westernization, 4
DEVELOPING ECONOMIES 594 (1966). KAKUZO OKAKURA, THE IDEALS OF THE EAST WITH SPECIAL REFERENCE TO THE ART OF JAPAN 7-8
( John M Rosenfield, Western-Style Paintingin the Early Meiji PeriodandIts Critics,reprintedin SHIVELY, supranote 77, at 181.
originality; and new ideas must be accompanied by new techniques.
Fifth is dignity, nobility--qualities all too often lacking in modem painting. Yet these qualities are not simply a result of education, they must be inherent in the artist's character. An artist must remain a part of the world of men, yet never let his art be degraded by mundane matters.
Sixth is the particular for advances in two fields: historical
painting and Ukiyo-e. Landscapes, flowers, Buddhist and Taoist figures-each form has its own ancient technique; and in the field of historical painting also, the Old Tosa scrolls set high standards for us to follow. Yet, though historical paintings are numerous today, they seldom indeed succeed in moving us to sentiments of compassion for the ancients, or admiration for our country; new methods must be found for such paintings. As for Ukiyo-e, many have been the masterpieces produced in the last centuries, but the form has somehow not yet fulfilled itself in the new age. Of course, by "Ukiyo-e" I do not mean simply the usual glamorous depiction of men, women and children; for Ukiyo-e, like the ancient picture scrolls, should also endeavor to be a record of the customs and appearance of the modem age. Indeed, historical painting may be called the Ukiyo-e of the past; and Ukiyo-e, the
historical paintings of the modem age. I look for both forms to develop increasingly in the future.' 13
3. Fenollosaand Okakura Collaborate
Fenollosa and Okakura remained colleagues and, among other activities, served together on the Committee to Study Art Education (sometimes referred to as the Commission for Investigating National Painting), 114 organized by the Ministry of Education. In 1882, the twojoined Kuki Ryuichi (an administrator in the Ministry of Education) on a mission to the Kyoto-Nara region to catalogue important cultural and artistic objects.' 15 This event has been labeled by renowned scholars as the first of what would become continuing trips of the "Imperial Art Commissioners" intended to search out and identify Japan's national treasures.' 6 One of the critical battles of the cultural war was won in
113ARTS AND CRAFTS, supra note 87, at 56.114 OKUMA, supra note 60, at 347.115 Notehelfer, supra note 99, at 324.
116 Id. For a note from Fenollosa on discovery, see id. at 324. There were considerable other persons
1885 when, following months of conflict, Fenollosa and Okakura-then members of the Pictorial Research Committee of the Ministry of Education-succeeded in convincing the Ministry of Education to reverse its standing policy of fifteen years and reinstate the use of the traditional brush and ink for drawing in lieu of the western-style pencil." 7 Following this victory, in 1886 Fenollosa resigned his academic post to devote himself to the arts. In that same year, Fenollosa and Okakura were sent to Europe by the government to study the various schemes of art education extant on the European continent. 8 Upon
their return, they submitted a report in which they recommended:
Inasmuch as the Western countries were developing to bring out the best in their own national art instead of imitating other countries, the policy of the Japanese government should be to
influential in the area of the preservation of cultural treasures; however, they do not often receive attention in the popular press. Recognized art historian, Christine Guth, points out that Machida Hisanari, the first director of what was to eventually become the Tokyo National Museum, had early been awakened to the importance of protecting cultural treasures when he was a student in England in 1865 and as a visitor to France in 1867. CHRISTINE GUTH, ART, TEA, AND INDUSTRY, MASUDA TAKASHI AND THE MITSUI CIRCLE (1993). "Machida, influenced no doubt by what he had seen in Europe, was one of the leading advocates of the creation of a national museum that would be a repository for works illustrating the artistic achievements ofthe past." Id. at
106. Guth also notes that prior surveys had also been conducted and provides insight into the reasons:
Commerce was also a motivating force behind the first government survey of temple and shrine treasures conducted in 1872 under Machida's direction. Although this undertaking signaled the start ofthe Meiji government's effort to identify important cultural property, the survey's aim was not strictly cultural. The survey team also hoped to locate examples of traditional art that could be sent to the International Exposition scheduled to be held in Vienna the following year as well as models for artists preparing contributions for sale at
subsequent fairs.
Id. at 107. See also Christine M. E. Guth, Kokuho: From Dynastic to Artistic Treasure, 9 CAHIERS D'EXTRtME-ASIE 313, 315 (1996-97).
Others also cite the need to supply foreign exhibitions with objects that might place Japan in a favorable and therefore influential light as a stimulus to conservation measures. See Carol Ann Christ, The Sole Guardiansofthe Art InheritanceofAsia: Japanand Chinaat the 1904St. Louis World's Fair,8 POSITIONs 677 (2000):
Between 1855 and 1914 a world's fair was held nearly every two years. They were grand arenas in which nations established or bolstered their status by demonstrating a strong, centralized government, industrial and economic might, military potency, and a capacity for cultural leadership-all the requisite characteristics of a colonial power of the era.
Id. at 677. See also Neil Harris, All the World a Melting Pot? Japan at American Fairs,1874-1904, in MUTUAL IMAGES: ESSAYS INAMERICAN-JAPANESE RELATIONS 24 (Akira Iriye ed., 1975). For a survey of the subject, see Katherine Kustler, Early Influences On Japan's National Treasure Preservation System (2002) (unpublished masters thesis, University of Washington) (on file with the author).
117SHIVELY, supra note 77, at 116, 211. OUTLINE OF JAPANESE HISTORY, supra note 58, at 308; Notehelfer, supranote 99, at 325.
"aYANAGA, supra note 10, at212.
bring out and develop the good points of Japanese art first, and with this foundation the good features of foreign art might be adopted to good advantage later.119
It has also been said that it was during this period that Okakura was first exposed to the efforts of France and Italy to protect their cultural and ethnographic properties. This exposure is considered the stimulus for Okakura
0
to form a similar movement in Japan. 12Following their return to Japan, Okakura and Fenollosa joined the staff of the Tokyo Imperial Museum, 12' and Okakura was appointed Chief of the Art
Section. In 1888, Okakura and a colleague founded Kokka (National Flower), a scholarly journal dedicated to the study of classic art.122 In February 1889, the Commission for Investigating National Painting, upon which Fenollosa, Okakura, and Kuki had served, became the Tokyo School (Academy) of Fine Art, and Okakura was elevated to the head of the institution in 1890.23 Initially, the school was fully nationalistic and offered study and training limited to Japanese traditions. It offered no instruction in the western styles.1 24 Later, its teachers, including Hashimoto and Hogai, were able to infuse such Occidental features as perspective, light and heavy coloring, and abstraction into the teaching of the modern Japanese movement. 125 In 1896, Okakura
...Id. at 212-13.120 CompareShimizu, supra note 3 with GUTH, supra note 116, at 107:
Although Japanese officials may have been inspired by British and French efforts to safeguard and register historic monuments and their contents, the 1872 survey was probably patterned after one conducted at the end of the eighteen century at the order of Tokugawa Regent Matsudaira Sadanobu. For that survey... had visited many ofthe same temples and shrines later visited by the Meiji team.
i21 A group, Seikyosha, began publishing a bi-monthly Nihonji dedicated to the preservation of the national essence in April 1888. The mission statement read:
The Japan oftoday is the same Japan which was founded originally. Accordingly, despite the fact that our activities have become increasingly complex, the major problem confronting us today is still to elect systems of religion, education, art, politics and production
appropriate to the ideas and skills of the Japanese people and to the countless external and environmental factors present in the land ofJapan.
SHIVELY, supranote 77, at 103. One of the founders, Miyake Setsurei, wrote of the importance of maintainingthe independence and integrity of Japanese culture and heritage, and advocated that the Imperial Museum in
Tokyo confine itself to exhibiting Oriental art.
:22 YANAGA, supra note 10, at 213.23 SHIVELY, supra note 77, at 212.
24 Id. at 201.
'25 OKUMA, supra note 60, at 347.
finally agreed to permit training in western methods. 126 Ultimately, however, it was upon the precepts espoused by Fenollosa and Okakura that the institution found its influence, and prospered.
In the meantime, the emperor experienced a change in perspective since the Oath of Five Articles had been issued. As a consequence, on October 30, 1890, the Imperial Rescript on Education was issued, stating "the way here set forth is indeed the teaching bequeathed by Our Imperial Ancestors, to be observed alike by Their Decedents and the subjects, infallible for all ages and
127
true in all places."' Imperial support of craftsmen grew, and, in June of 1888, eighteen members were nominated to the Imperial Household Office Craft. 121 In September of that same year, Ryuichi Kuki, Director of the Imperial Museum, formed the Temporary All-Japan Treasure Research Bureau in the Department of the Imperial Household. Its members, under the direction of Fenollosa, Okakura, and Hogai, investigated old objects d' art in private collections, as well as in shrines and temples, in and around Kyoto, Nara, and other significant locations in Japan.129 The purpose of the survey was to identify and catalogue important works. This initiative was the origin of the Old Shrines and Temples Preservation Society, which, after a number of incarnations, became the National Treasure Research Committee and finally the Cultural Properties
30
Protection Commission.' During this period Fenollosa and Okakura continued to teach regularly at the School of Fine Arts and at other institutions in Tokyo.13 1 In addition, they
frequently traveled throughout Japan on behalf of the National Treasures Research Bureau of the Ministry of Education to catalogue and register objects of antiquity.' 32 These activities are credited as the stimulus for the passage of
The Law for the Preservation of Ancient Shrines and Temples of 1897.
Okakura served as curator of the Imperial Household Museum from 1890-1898. In or about 1893, Okakura helped found the Fine Arts Research Institute that served as the center for documentation and study of Japan's
33
cultural heritage. 1In 1890, Fenollosa returned to the United States and became head of the Oriental Art Department of the Boston Museum of Fine Arts and continued in
126SHIVELY, supra note 77, at 202.
127Id. at 77.128ARTS AND CRAFTS, supra note 87, at 119.
I29
d. at 315,
30 OUTLINE OF JAPANESE HISTORY, supra note 58, at 315.: SHIVELY, supra note 77, at 212.
32Id.
133Id. at 213.
that position until his resignation under a cloud of moral opprobrium in 1897.134 Notwithstanding Fenollosa's remarkable influence upon the Japanese art scene, "his importance lay in that he brought new light and new attention upon important art subjects long neglected in Japan and, moreover he moved officialdom to do something concrete about its neglect., 135 Fenollosa died in England in 1908 at the age of fifty-five. He was cremated and his ashes were transported to Japan where he was buried in the Buddhist cemetery at Mei-dera, the location of the temple at which Fenollosa had been inducted into the Buddhist faith.
Okakura's life, too, became caught up in personal controversy and he was forced to resign his position at the School of Fine Arts on March 28, 1898. Some faculty had circulated a petition calling for his dismissal due, apparently, to what was conceived to be his despotic administration. In addition, he had managed to offend a number of influential conservatives, and they sought his removal. Finally, Okakura had engaged in a scandalous affair with the wife of Kuki, the colleague with whom he and Fenollosa hadjoined in 1892 to serve as Imperial Art Commissioners. In a state of some embarrassment he departed the
School of Fine Arts along with seventeen sympathetic faculty and started the Nihon-Bijutsu-in, The Japan Art Institute (Academy). Okakura also traveled extensively, and in 1910 was appointed Curator of Chinese and Japanese Art at the Boston Museum. 36
4. The Movement After Fenollosaand Okakura
Following the departure of Fenollosa and Okakura, the movement toward aesthetic nationalism lost concentrated focus. It is not that their disciples lacked passion and commitment, but rather they lacked a dominant figurehead around whom they might rally. The pressures of industrialization and
modernization led to a continued deterioration of some indigenous artistic expression. During the period between the two World Wars, it was the folk-craft or Mingei Movement that inherited the spiritual legacy of Fenollosa and
134Id. at 215; see CORTAZZI, supranote 22, at 205. Fenollosa was divorced by his first wife, a Salem born woman of social standing and he married another woman who had been on the staff of the museum. Id.
135ARTS AND CRAFTS, supranote 87, at22. However, as noted in GUTH, supranote 116, at 113:
Clearly Fenollosa, far from teaching the Japanese people to know their own art, as Mary
Fenollosa would later claim in her introduction to Epochs ofChineseandJapaneseArt, was
totally dependent on Japanese dealers and connoisseurs for both his information and his
acquisitions.
36 While ARTS AND CRAFTS, supranote 87, at66, notes the year as 1904, Notehelfer, supra note 99, at
347, indicates the year as 1906.
Okakura. Led by Yanagi Soetsu, the movement strove to stimulate an appreciation for the beauty of common objects. 137 It was westerners, however, who had stimulated the awareness of Yanagi. Befriended by Bernard Leach, an English potter, he had come to appreciate utilitarian objects crafted during the Edo Period. As Leach, a co-founder of the movement noted:
I have had a sense of doubt on one main issue-the relationship between the conscious artist and the comparatively unconscious craftsman. Yanagi's constantly reiterated theme concerns the exceeding difficulties experienced in attaining a like purity and wholeness by the artist. He says our arts and crafts are in a diseased condition-with that I agree-but he turns to the artist-craftsman to act as the pilot in this dilemma because of his greater awareness, thereby indicating the power that has come to
conscious man through the evolution of intellect.' 38
The Mingei Movement has been credited with reinvigorating many ofthe traditional crafts including pottery, textiles, ceramics, and printmaking. It is in this sentiment that the respect for craftsmen and, likely, the awards and recognition given them finds its origins.
Among the principal critical controversies of the period, the conflict between Western methods and styles, and traditional crafts, of course loomed large. At the same time, the conflict between utility and decorativeness, commercialized manufacture and patrician, artistic crafts, was also a vital concern of the critics as well as the artisans. Toward the end of the Meiji Period a strong movement also appeared aiming at establishing the crafts
as a pure art form, quite separate from their functional use. 139
What had begun for Japan in 1868 as an effort to mount a program of westernization to better compete in the world economy concluded in the pre-World War II years with an awakening of appreciation for Japanese tradition. Perhaps most importantly to the preservation of cultural property in Japan were the catalyzing activities of Okakura and Fenollosa in attempting to identify, classify, and register cultural treasures. Their simple goal was that such valuable expressions not be sold and exported but that they assume and
CORTAZZI, supranote 22, at 247.13Id. at 347.
139ARTS AND CRAFTS, supra note 87, at 116.
maintain a revered place in the cultural history ofJapan. Their efforts were the direct stimuli that awakened the Japanese people to the value of their cultural property and led to the promulgation of the numerous laws protecting that
14°
asset.
III. LEGISLATIVE ANTECEDENTS TO JAPAN'S LAW FOR THE PROTECTION OF CULTURAL PROPERTY
Three discrete Japanese laws are often identified as the antecedents to the 1950 effort. They are: (1) the Law For The Preservation of Historic Sites, Scenic Spots and Natural History Preserves Number 44 of 1919; (2) the National Treasures Preservation Law Number 17 of 1929; and (3) the Law For The Preservation of Important Art Objects Number 43 of 1933.
Unfortunately, there is a dearth of information, at least in the West, that identifies the terms, policies, and principles of these statutes as well as the other legislative and administrative efforts made in Japan to protect cultural property. Following is a brief survey of the myriad initiatives taken to that end by various branches of Japanese Government.
The formal administration of cultural properties was established during the Meiji Period and commenced as a nationalistic response towards efforts to westernize Japan. The first administrative action of significant note was the Daijokan Fukoku, the Preservation of Ancient Artifacts (Preservation of Antiques and Ancient Goods, Cabinet Announcement 1871). The Daigaku, forerunner to the Mombusho (The Ministry of Education), ordered the designation and protection of thirty-one categories of cultural artifacts. The categories of items to be protected included such diverse items as ceremonial articles, weapons, gems and precious stones, calligraphy and painting, carpentry, musical instruments, household furnishings, garments, tea ceremony utensils, games, and dolls. The underlying purpose of the order was to stimulate in owners an appreciation for cultural artifacts within their charge, to promote respect for the objects, and to prevent the properties from being casually sold or misplaced. This Order of the Grand Administration Office of May 23, 1871 specifically articulated the spirit of the regulation:
14o See COHEN, supranote 95, at 43; Christine M.E. Guth, Japan1868-1945: ArchitectureandNational
Identity, 55 ART J. 18 (1996); Interpellation on the Preservationof National Treasures and ImportantArt
Objects, ASAHI SHIMBUN, Sept. 9, 1947 (remarks by Tatsuo Morito) (on file with author); Minutes of the
Proceedings in the House of Representatives, The Ist Sess. of the National Diet, Oct. 1, 1947 (Tatsuo Morita's
reply to Shigeyoshi Fukuda of the Cultural Affairs Committee) (on file with author) [hereinafter Minutes from
the 1st Session of the National Diet].
Against deplorable loss or damage of antiquities that are
significant examples of changing systems and customs of ages in
the course of time, such antiquities must be preserved in all
districts for future generations. 14'
Later in 1874, in a continuing effort to provide protection to ancient objects, the Daijokan issued Law Number 59. It required the report and registration of shell mounds and ancient tombs. That was followed by Law Number 3 in 1880. Issued by Kunaisho, (the Imperial Household Agency), it obligated any private landowner who discovered an ancient tomb upon his land to register it with the Agency. It further restricted the excavation of ancient tombs by any person. In 1888, the Imperial Household, through exercise ofits inherent power, 142 created a Department for the Investigation of Cultural Assets. It was through this vehicle that Okakura and Kuki were able to identify, inventory, and register approximately 215,000 ancient books,
paintings, sculptures, and other cultural properties. 143
The Meiji Government enacted Koshaji Hozonho, the Law for the Preservation of Ancient Shrines and Temples, in 1897.144 Insofar as the Koshaji Hozonho had created a program ofregistry, designation, maintenance,
and subsidy, it has been considered the prototype for the current cultural property law. This law was founded upon the information elicited by the investigations of Okakura. 145 Naimusho (the Agency of Domestic Affairs) was charged with administration of the new law, and the former cultural assets responsibilities of Kunaisho were surrendered to and consolidated within the Agency. Under the new scheme, the Agency's authority extended not only to the structure of shrines and temples, but also to cultural treasures found within them, and the Minister of Domestic Affairs was empowered to designate certain properties and structures as national treasures. The Shrines and Temples Law charged the owners of any designated entities with their conservation and
protection, and it created an elemental system by which to regulate subsidies for their maintenance and repair. In 1913, the administration of the Ancient Shrines and Temples Law was transferred to the Department of Religion ofthe Mombusho, the Ministry of Education.
141The National Treasures Preservation Law (Mar. 28, 1929), LawNo. 17, Imperial Ordinance No. 203,
in § V (Preservation of National Treasures) of the 1938 Edition of GENKO HORE SHURAN, cited in Interdepartmental Committee for the Acquisition of Foreign Publication, SCAP (on file with author).
14 Interview with Hiroko T. McDermott, Art History Scholar, Cambridge Univ. (June 10, 2002).
43 Bunkazai hogo-h6 to toroku seido no kaisetsu [Commentary on the Law for the Protection of Cultural
Properties and the Registration System], translated by Sawaka Nagano, Esquire, Tokyo, Japan. :44 GUTH, supranote 116, at 163.
141 See id.at 162.
Land development in general, and the building of railroads and factories in particular, stimulated the 1919 passage of Law Number 44 ("Law 44"). Law 44 provided for the Preservation of Historic Sites, Scenic Spots And Natural Preserves. It empowered the Minister of Home Affairs to designate properties subject to the law, prohibit or limit certain activities in the area of the properties, prevent modification of the sites unless sanctioned by the prefectural governor, and undertake excavation or removal of obstacles from the site or the surrounding area when such would facilitate the investigation of the site. The statute also provided for reparations to private individuals who suffered damage as a result of any excavation, and designated as criminal the wrongful disturbance of the site. The penalty for violation of the law was imprisonment for not less than six months or a fine of not less than V100.Finally, certain provisions of the Law regarding the Preservation of Ancient Temples and Shrines that were inconsistent with Law 44 were repealed. Subsequently, Law Number 81 of 1928, entitled Control of Matters Relating to Preservation of Historic Sites, Scenic Spots and Natural History Preserves, transferred administration of Law 44 from Naimusho to the Department of Religion of the Mombusho (the Ministry of Education). 146 This began the formal consolidation of the administration and enforcement of cultural property concerns within the Ministry of Education.
On March 28, 1929, at the beginning of the Showa Era, the most comprehensive law to protect cultural property to that date was passed. Known as Law 17, the National Treasures Preservation Law abolished and superseded the Koshaji Hozonho of 1897.147 Law 17 became effective July 1, 1929, in accord with Imperial Ordinance Number 209 of 1929.148 By its terms it incorporated the essential substance of the prior Temples and Shrines Act into its provisions and also expanded the scope of the prior act so as to include any
146Preservation of National Treasures, Law No. 17, Annex (2) (1929) (Japan), in SCAP Civil Info. and
Educ. Sec., Report of Conference with Mombusho Rep. (Jan. 22, 1947) (on file with author).
147 Id.
148Id.; see GUTH, supra note 116, at 191:
Despite opposition from collectors who feared that restricting the right to dispose freely of
objects in their collection would hurt the art market, in 1929 the government enacted the Law
for the Protection of National Treasures. This new law led to the registration of many works
of art long esteemed bycollectors butpreviously ignored by the government. Works newly
classified as National Treasures ranged from The Tale of Geniiscroll belonging to Masuda to
works by literati painters like Taiga and Yosa Buson. Under the provisions of the law,
private owners of National Treasures were guaranteed subsidies for restoration or repairs,
just as temples and shrines were, but unlike the latter they were entitled, upon approval from
the Ministry of Education, tosell or use their treasures as collateral for loans. The new law
also explicitly prohibited the export of National Treasures, and in so doing finally achieved
the very goal that Masuda and fellow industrialist collectors had claimed to seek.
structure, treasure, or object ofhistorical significance, including objects of fine
art. Unlike prior governmental efforts, the new law covered all property
whether it was owned by the national government, municipal governments, or
by private persons. By supplementary rule, it was deemed that Law 17 would
regard objects that had heretofore been qualified as buildings or national
treasures under the Temples and Shrines Act as objects automatically
designated as national treasures.
Article 1 of Law 17 empowered the Minister of Education to refer the identified forms of property to the National Treasures Preservation Committee ("NTPC"). 149 The NTPC was a special administrative agency formed under the law to address the formal protection of cultural properties. The referral led to subject properties being designated as national treasures. Once an object was so designated, control over it by the government was plenary. The treasure could not be exported, nor could its ownership change, without approval of the competent minister.1 50 Further, no change in condition or alteration of the object could be effected without prior approval of the minister.1 51 The only exception was for maintenance or repair. 152 Should the minister desire to grantapproval for transfer, export, or change of condition of a designated object, he was required to refer his recommendation to the Preservation Committee for review.15 3 Private ownership interests in properties designated as national treasures were further curtailed through a requirement found in Article 7. That provision imposed a duty upon the owners to put their properties on exhibit at the Imperial, government, and public museums at certain times during each year in accord with the discretionary judgment of the minister.1 54 Limited subsidies to assist with maintenance and care of the properties were, however, provided to compliant owners as a reciprocal gesture and Article 9 limited compensation was made available in the event that the objects were lost or
damaged during the course of display, except under conditions of force
majeure.155
Detailed reporting requirements were imposed upon owners and
149 Regulations for the Enforcement ofLaw Regarding Preservation of National Treasures, art. I (1929)
(Japan), in SCAP Civil Info. and Educ. Sec., Report of Conference with Mombusho Rep. (Jan. 22, 1947) (on file with author). ISOAbstract, Interdepartmental Committee for the Acquisition of Foreign Publications, The National Treasures Preservation Law (1936) (Japan) (on file with author). "15 Id. art. 4.1.1. 152 Id. art 4.
114Id. art. 5 ("Society for preservation of National Treasures").154 Members of Arts and Monuments opposed any practice that would diminish the role of private
property' under the Japanese Constitution and place control in the government.
Civil Info. and Educ. Sec., Research and Info. Div., Japanese Cultural Resources General Report No.
3, at 9 (Feb. 1, 1946).
custodians pursuant to regulations passed to support administration of the 1929 law. In addition, criminal sanctions were included in Law 17 to better assure compliance with its terms. These included:
1.
Any person found removing or exporting a national treasure without proper approval was subject to not more than five years ofpenal servitude or a fine not exceeding Y-2,000 (Article 20);
2.
Any person found destroying, damaging, or concealing national treasures was subject to not more than 5 years' penal servitude or a fine not exceeding \500 (Article 21);
3.
Any change in location of a national treasure without prior permission of the proper minister could make the actor subject to a fine of not less than \500 (Article 22);
4.
Failure to notify of changes of ownership, punishable by a fine of not less than \100 (Article 23).56
While the National Treasures Law provided some protection for properties designated pursuant to its terms, the Japanese Government became aware during the several years following its enactment that numerous and important fine art objects or objects of significant cultural value, other than
those designated as national treasures, were departing its shores at an increasing rate. It concluded that this alarming state of affairs was injurious to the interests of the Japanese people.157 In response to this concern, Law Number 43 of April 1, 1933, the Law on the Preservation ofImportant Art Objects (or in some translations Essential Art Objects), was drafted and codified.15 Pursuant to this law, historically and aesthetically valuable and important art objects, other than those designated as national treasures, were prohibited from exportation or transfer without express permission of the Minister ofEducation. By definition, objects made by contemporary artists, those that were made within fifty years of the desired exportation, or those that were the subject of importation within one year of the desired exportation, were not to be
156See id.; Abstract, Interdepartmental Committee for the Acquisition of Foreign Publications, supranote
150.
157Arimitsu Jiro, Chief of Preservation Section, Religious Bureau Ministry of Education (1934)
(handwritten manuscript) (on file with author).
"' 7 GENKo HOREI SHURAN 1067, Regarding the Preservation of Essential Objects (1938), cited in
Interdepartmental Committee for the Acquisition ofForeign Publication, SCAP (on file with author); Civil Info.
and Educ. Sec., Research and Info. Div., supranote 155; seealso Civil Info. and Educ. Sec., Research and Info.
Div., supra note 155, app. IV.
considered subject to the law.1 59 In the event that a request for export or transfer was made, the minister was to respond within one year from the date the application was submitted, or the object would be designated a cultural
and become subject to the National Treasures Preservation Law.' 60
treasure Should any persons transfer or export an object without proper authorization, they would be subject to imprisonment for not more than three years or to a fine ofno more than l000. The regulations for enforcement of Law 43 were made effective through the Ministry of Education Order Number 10 of April 1, 1933.161 It listed paintings, sculptures, buildings, documents, ceremonial books, historical records, swords, arts and crafts, and archeological materials as objects subject to the law.1 62
The 1933 law was deemed an administrative success, and the tide ofloss was stemmed. While the prospective effect of the law was formally abolished by the Law for the Protection of Cultural Properties of 1950, it still possesses limited consequences. In accord with Article 116 of the 1950 Law, objects designated under the 1933 law remain subject to the transfer and export restraints of the current law. Although the administrative operations of the Ministry of Education were reduced and simplified during the years of Japan's involvement in hostilities with the West, the agency continued to actively designate cultural properties until 1943. That year, it ceased all cataloging operations, instead focusing its attention upon the removal and safe storage of cultural treasures so as to protect them from the ravages of war.
In October 1945, the Ministry of Education resumed its designation activities. This was, again, in response to an apparent increase in the exportation of cultural goods. In addition, the Ministry assumed the responsibility for investigating the condition of structures that were reported to be in disrepair. In 1948 it began implementing a five-year reconstruction plan. Part IV of this Article specifically addresses the activities regarding the
protection of cultural properties during the years of occupation. 63
One should not assume, however, that activity in the subject area of the protection of cultural properties was limited to the legislation discussed. There were a considerable number of additional and important laws, imperial edicts, rules, and regulations that were, and continue to be, relevant to the subject. A full appreciation for the breadth and depth of governmental activity can only be
159 7 GENKO HOREI SHURAN 1068-1, Enforcement of the Laws Regarding the Preservation ofEssential Objects, art. 1(1938), cited in Interdepartmental Committee for the Acquisition of Foreign Publication, SCAP (on file with author).
..oId. art. 3.
11Id. pmnbl.I62
d.
163 See Bunkazai hogo-ho to toroku seido no kaisetsu, supranote 143.
had by acknowledging them. A comprehensive list of the activity is provided in Appendix I to this Article.164
IV. THE PERIOD OF OCCUPATION-ITS INFLUENCE ON THE CULTURAL PROPERTY PROTECTION ACT OF 1950
Upon surrender of the Japanese in 1945 following the hostilities in the Pacific, the Supreme Commander for the Allied Powers ("SCAP") was placed into power over the region pursuant to an international agreement among the governments of the United States, China, the United Kingdom, and the Union of Soviet Socialist Republics. General Douglas MacArthur was selected to exercise what was, in fact, a dual command role in that initiative. He served the Allied nations of the Far East Commission ("FEC") as the Supreme Commander and was the Commander-in-Chief, Far East on behalf of the United States.
The FEC was the high policy-making body. It was convened in Washington, and it comprised representatives of thirteen nations. These included China, the United Kingdom, the United States, the Union of Soviet Socialist Republics, France, the Netherlands, Canada, Australia, New Zealand, India, Pakistan, Burma, and the Philippines. The FEC formulated the policies, principles and standards necessary to accomplish the terms of surrender. It had no authority over military operations, but rather transmitted its decisions to SCAP through the United States Joint Chiefs of Staff. These decisions were in the form of directives that were prepared by the United States. Also in place in Tokyo was the Allied Council for Japan, consisting of four Allied members, with General MacArthur as its Chair. The purpose of the Council was to provide advice and counsel to SCAP on the implementation of control of Japan. 165 Cultural matters in the organizational structure of the General Headquarters, of SCAP were within the province of the Civil Information and Education Section ("CIE"). This staff section, one of eighteen, was activated by General Order Number 193 of 22 September 1945, and was responsible to the Supreme Commander, General George MacArthur, through the office ofthe Chief of Staff. 166 The policies, which directed the work of CIE, were determined by SCAP under authority granted by basic post-surrender
"4 Civil Info. and Educ. Sec., Research and Info. Div., Japanese Cultural Resources General Report No. 3 (Feb. 1, 1946) (on file with author).
165 For Basic Occupation Policies see GENERAL HEADQUARTERS SUPREME COMMANDER FOR THEALLIED
POWERS AND FAR EAST COMMAND (SCAP), SELECTED DATA ON THE OCCUPATION OF JAPAN 3 (U.S. Gov't, 1950) [hereinafter SELECTED DATA]. For organizational charts ofthe SCAP and its various divisions, see id. at
134. See also BEASLEY, supra note 58, at 214.
'66 SELECTED DATA, supra note 165, at 8.
documents and directives as founded upon decisions of the Far Eastern Commission. 167 Specifically, CIE "had the job of formulating policies in public education, religion, and other sociological problems of Japan."'' 68
The Cultural Resource Division of CIE was merged in 1947 with the Religion Division to become the Religion and Cultural Resources Division. Through its sub-group, the Arts and Monuments Branch ("A&M") (often referred to as a Division in the literature), it was specifically responsible for:
initiation and recommendations regarding management and finance of numerous projects for the protection, preservation, restitution, salvage, or other disposition of works of art, antiquities, cultural treasures, museums, archival repositories,
historic and scenic sites, and historical and natural monuments. 169
The official posture on the protection of cultural and ethnographic property during the occupation was articulated by General MacArthur as "historical, cultural and religious objects and installations (including several Imperial Palaces) will be carefully protected and preserved."170 A press release from the U.S. Department of State of August 16, 1946, also reflected this seminal policy. It stated that:
The immediate postwar problem consists of the reconstitution of the artistic and historical heritage of occupied countries ....The protection of art in time of war is based upon the universally accepted principle that cultural property is inviolable ....The artistic and historic treasures of a nation are regarded as that Nation's patrimony, and the great public collections of the world as an international heritage. It is the preservation of this irreplaceable cultural heritage of all nations that is recognized,
today, as an international responsibility. 171
167 THE GENERAL HEADQUARTERS SUPREME COMMANDER FOR THE ALLIED POWERS, MISSIONS AND
ACCOMPLISHMENTS INSELECTED FIELDS 1 (U.S. Gov't, Jan. 1, 1950) [hereinafter MISSIONS].
6' DAVID WATERHOUSE, JAPANESE ART UNDER THE OCCUPATION, THE OCCUPATION OF JAPAN: ARTS
AND CULTURE 206 (1988). 169MISSIONS, supra note 167, at 26 and footnote report of accomplishments. This was also the charge of General Order No. 27, dated June 3, 1946, to CIE. Id.
170Summary of Press Reports, Imperial Household Collections and Reparations, Supreme Commander
for the Allied Powers (Undated) (on file with author).
171Press Release, U.S. Dep't of State, The Conservation of Cultural Property (Aug. 16, 1946)
Memorandum from Howard C. Hollis, Chief, Arts and Monuments Division, to Chief, Civil Information and Education Section, General Headquarters, Supreme Commander for the Allied Powers, at 2 (Sept. 5, 1946) (on file with author).
In order to accomplish the end with which it was charged, A&M was denoted as liaison between the various Japanese governmental agencies responsible for promoting similar policies. 172 It was, in fact, through A&M and its staff that the actual policies for the preservation of cultural properties were conceived and carried out.
As a consequence, in order to develop a genuine understanding of the events leading to, and the influences culminating in, the 1950 Law for the Protection of Cultural Properties, consider the following: (1) the identity of the principals who were on the staff of A&M and their sensitivity to the art of Japan, their perspectives on the importance of cultural property and its protection, and the identifiable sources from which they might have drawn their views; and (2) the positive actions actually taken by the Branch during the occupation, how such actions were legally characterized, and the influence that they had upon the formulation of Japanese policy.
A. The A &MBranch andIts Personnel
An advisory committee of U.S. officers, including Lt. Commander George L. Stout, U.S. Naval Reserve, the conservator of the Fogg Art Museum at Harvard, and Laurence Sickman, curator of Oriental Art at the Nelson Art Gallery in Kansas City, called for the formation of the Arts and Monuments
Division even prior to the formal surrender of Japan to the Allied Forces.1 73 The Arts and Monuments Division that had been operating in the European theater is claimed to have been their inspiration.1 74 Lieutenant (later Captain)
W. D. Popham initially assumed the position of Chief of A&M. In a memorandum to the Secretary of War dated August 29, 1945, from the Commission for the Protection and Salvage ofArtistic and Historic Monuments in War Areas, Popham articulated the early policy of A&M:
The occupying army is cognizant of the fact that the age-old
cultural and artistic monuments in the lands to be occupied are a
part of the cultural heritage of all peoples, and it is a fundamental
policy of this army to protect and preserve in every way possible
these monuments. Furthermore, it will be our policy to co-operate
with the Imperial Japanese Government insofar as possible to
assist in the restoration and repair of all recognized works of
72 SELECTED DATA, supra note 165, at 154.
173 Lee, supra note 8, at 91.
74 id.
artistic and historic value .... 175
Lt. Commander George L. Stout later replaced Popham as the Branch developed a civilian complexion. The staffing under Stout included Popham, an influential scholar of curatorial arts by the name of Langdon Warner, and other scholars who had associations with the Fogg Museum. The latter group included Sickman and James Marshall Plumer.1 6 Of particular note was the participation of Langdon Warner. 177 Mr. Warner was a professor at Harvard and a head of Oriental Art at the Fogg Museum. He has been considered the "Dean of Oriental Art" in the United States and had been the teacher and mentor ofmany of the curators of Oriental art in museums of that day. Perhaps
'71 Memorandum from W.D. Pophan, Chief, Arts and Monuments Section, to Secretary ofWar (Aug. 29,
1945) (on file with author). WATERHOUSE, supra note 168, at 206. 17 A letter from Arts and Monuments (signed by GLS), to the Special Advisor, Feb. 12, 1946, notes:
#1. Mr. Langdon Warner of Harvard University was requested as an expert consultant in Arts and Monuments for a period of 30-90 days by message from SCAP to Warsec (ZA 12336) dated 2 January 1946.
#2 In order to establish an understanding as to the activities of the expert consultant during his tour of duty at this headquarters, the following suggestions are offered:
(a)
Review of the working file of sites and collections listed by the division for special protection, with the aim of fixing priorities according to the risks involved.
(c)
Consideration of the advisability of seeking the establishment of an advisory body on matters of arts and monuments, in the Japanese government. Formation ofsuch a body to correlate the activities of the five ministries which carry some responsibility for cultural property has been suggested. Advisability of having such a body is open to question and merits study by an expert.
(d)
Investigation of the current status ofprivate collections. About 350 such collections the more important in Japan, have been studied from available records and data and is held for revision in the working files ofthe division. Official sources, however, are not informed as to the present content ofall collections or war damage sustained on location in emergency depositories.
(g)
Inquiry as to whether or not the work of temporary artists in Japan is being encouraged or discouraged by governmental action and attitude. Complaints from artists and craftsmen have come to this division to the effect controls of supplies, of commissions, and the exhibiting facilities is still held, undercover, by a monopoly which had functioned as a bureau established by the government in 1945 as a kind of propaganda control. Although this division has not been charged with the responsibility ofmaking recommendations on this matter it is one which concerns the conduct of the occupation.
Letter from Arts and Monuments, to the Special Advisor (Feb. 12, 1946) (on file with author). A response, signed by DRN, on February 14, 1946, concurs with suggested activities of expert consultant.
most importantly, he was perceived by the Japanese population as a sympathetic expert in indigenous art generally, and as a benefactor ofJapanese culture in particular. 178 As characterized in 1947 by Morito, the Minister of Education, Warner was widely known for his appreciation of Japanese cultural property, and he made frequent remarks supportive of the preservation effort.' 79
Warner was also credited by the Japanese with having saved the cities of Kyoto and Nara from destruction through his impassioned pleas to the Allied forces. 180
Significantly, Warner's original interest in Oriental art had been cultivated through an acquaintance with Okakura Tenshin when both were employed at the Boston Museum.' Warner had assumed the position of Assistant Chief of the Oriental Section of the Museum at a very young age and at a time when Okakura was the Chief of the office. Okakura served as his mentor, and it was to a great extent through him that Warner gained his knowledge and understanding of Japanese art.182 Warner also credited Okakura as having made possible his first pilgrimage to Japan. 183 On that trip, near the
178 There were, in fact, efforts by the Japanese to honor Warner that were discouraged by SCAP. See
Letter from J.M. Plumer, Fine Arts Advisor, to Dr. George McClellan (July 13, 1949) (on file with author) (stating that "it has come to my attention just as I am leaving for Zoi that there is a movement afoot to erect a memorial bronze bust of Langdon Warner in Kyoto. There should be discouragement of this activity.").
'79 Translation, Transcript of Education Minister Morito's Reply to Interpellation in Diet on Export and Loss ofNational Treasures (Sept. 18, 1947) (on file with author) [hereinafter Transacript ofEducation Minister Morito's Reply]; Minutes of the Proceedings from the 1st Session of the National Diet, supra note 140 (transcript of Mr. Shigeyoshi Fukuda's comments on behalf of the Cultural Affairs Committee).
8o Transcript of Education Minister Morito's Reply, supranote 179, providing:
America had been developing their rationality even while fighting. A certain committee was
formed for bombing Japan. I have heard that Dr. Warner was invited as the authority on Japanese art to make and submit a complete list of Japanese objects, in detail. Now, almost all of the cities in Japan were completely bombed, but the ones that were left alone were not
touched, just as it was in Dr. Warner's plan that was followed by men of reason and conscience in the American Force. Everyone knows that the cities of art, Kyoto and Nara, did not suffer from one bomb, surviving the war unharmed.
Accord WATERHOUSE, supra note 168, at 216.
1 Minutes Transcript of Education Minister Morito's Reply, supranote 179, providing:
As you all may know, Dr. Warner had assumed the seat of assistant chief of the Oriental Section of the Boston Museum while quite young. Under the guidance ofTenshin Okakura who was at the time the chief of the section, he attained knowledge and understanding to an enormous extent. You also know that when Tenshin Okakura returned to Japan, Dr. Warner later followed; stayed in Kangakuin (Todaiji Temple), Nara, where he devoted himself to
studies ofTempye sculptures, later made visits to all parts of Orient, and was the head ofthe Oriental Section of the Harvard Museum until recently.
182 See GUTH, supra note 116 and accompanying text.83 Press Confab 1, Radiopress Special (Apr. 19, 1946) (on file with author) (complete Report of Press
Conference by Mr. Langdon Warner, Dean of American Lecturers on Far Eastern Art, and author of well-
close of the Russo-Japanese War in about 1906, Warner visited Nara. According to Professor Umehara of the Kyoto Imperial University:
Tenshin's card in hand, he (Warner) tapped at the door of the old Ni-iro Chunosuke, who was then the president of Nara Art Institute, and became his pupil. His outfit consisted of kimono and geta. His diet consisted of bean soup and cooked rice dipped in green tea, frugal pattern of Japanese life. And his daily routine was pilgrimage of all ancient temples. He has a kin-ship to ex-President Roosevelt, and his hair seemed to never have been tended or cut. He did not seem to mind cheap boarding houses to live in. He likes children and curios, never worries about punctuality and appointment, he does not care for anything
formal, and he has shy, artistic and scholastic inclinations. 184
Warner was also directly acquainted with Fenollosa, having worked in the Boston Museum while he was there. Finally, he often spoke of Dr. Morse and described having attended many of his lectures and having followed much of his work.185 Through Warner, the direct line of influence of Fenollosa and Okakura was imported into the philosophies of A&M and put into action. In September 1946, Howard C. Hollis, Curator of the Cleveland Museum of Art, succeeded Stout as Chief of A&M. It was upon the advice of Warner that Hollis was selected. 186 Hollis had worked directly under Warner at the Fogg Museum at Harvard University from 1928 through 1929, and it had been upon Warner's recommendation that Hollis had been initially employed by the Cleveland Museum of Art.
Also on the A&M staff in 1947 were Sherman E. Lee, Advisor on Collections, and two Occupation inspectors, Charles. F. Gallagher and Popham. Lee, a former assistant to Hollis in Cleveland during 1940-41 and Curator of Oriental Art at the Detroit Institute of Arts, had been specifically asked by Hollis to accompany him.1 87 Upon the departure of Hollis in 1947, Lee assumed the post of Acting Chief of A&M with Gallagher and Popham
known books on Japanese art). Serving temporarily as advisor to Arts and Monuments Division of Civilian Information and Education, Field Fellow of the Fogg Museum of Art, Harvard University, where he lectured during the war on Japanese culture to many officers now serving with the occupation force.
'84 Dr. WarnerArrives in Kyoto Tomorrow, ASAHI SHIMBUN, May 24, 1946 (translation on file with author).
195 See supra notes 94-97 and accompanying text. 196 Lee, supra note 8, at 91. 87 Of interesting note, Lee eventually became the Director of the Cleveland Museum ofArt (1958-1983),
and later on March 13, 2000, his daughter, Katherine Lee Reid assumed the same position.
remaining. Eventually Gallagher became Fine Arts Advisor, and J. M. Plumer remained as a Fine Arts Advisor.
This succession of distinguished scholars, the personal influences that they shared, the empathy each had for the Japanese people and their art as demonstrated by their vocational commitments and personal efforts, and the unbroken intellectual lineage harkening back to Morse, Fenollosa, and Okakura, was the vehicle through which the West in general, and the United States in particular, significantly impacted the cultural property perspectives of Japan.
The picture of the philosophical descent would not be complete, however, without an understanding of the direct effect that SCAP, A&M, and their personnel had upon the policy and composition of the 1950 law.
B. The Medium ofInfluence ofSCAP andA&M
Direct military government was not established in Japan. Rather, SCAP exercised its authority over the Japanese people through their duly organized government. 1" Thus, Japanese cultural property laws were not suspended during the occupation. 9 The Japanese Government, reoriented in accordance
188SELECTED DATA, supra note 165, at 1.
189Memorandum from GHQ, SCAP, by command of General MacArthur to Commanding General,
Eighth Army (Aug. 4, 1947) (on file with author) reads:
1. Japanese Government Agencies are being urged to take steps necessary to assure
preservation of cultural property in Kyoto as well as in other regions. Local organizations should be encouraged to take additional preservation measures provided that their operations are in accord with National policies and plans. They should be urged to coordinate their efforts with those of the Japanese Ministry and the National Museum.
2. It is the policy of the Supreme Commander for Allied Powers to refrain from the official participation in the internal affairs of the Japanese Government or private agencies unless there is evidence of contravention or violation of directives, regulations or laws. No action is contemplated with regard to the subject petition. However, officials of the Kyoto National Treasures Association may be informed verbally the Supreme Commander for the Allied Powers has no objection to the activities of the Association as long as they are in accord with existing Japanese Government laws governing cultural property.
Id.;see also, Internal Memorandum from Charles Gallagher, Asst. Advisor on Fine Arts (Mar. 8, 1948) (on file
with author). Gallagher notes having described the Japanese registration system for cultural property to Capt.
Ebbitt. Id. Gallagher confirmed that many swords were designated as NT or lAO, and instructed Ebbitt to
inform his men that they should bring such objects to A&M where they could be informed as to the proper
Japanese agency to which they should apply to receive certification that the object was not registered. Id.; see also, SCAP Check Sheet from CIE to ESS/FI (Nov. 3, 1947) (on file with author) (discussing export of property from Japan, and giving an explication of the existing Japanese Laws on the subject of cultural property). It notes:
with basic occupation policies, was permitted to exercise normal governmental
powers over traditional domestic concerns,' 90 and SCAP acknowledged on
numerous occasions that the cultural property laws of Japan were within that
domain.'91 Thus, it was through a course of oversight that the policies of SCAP were
transmitted to the Japanese Government through formal written directives
called SCAPIN. 192 Japanese compliance was checked by SCAP, and
considerable intervention by SCAP Staff Sections was often deemed necessary
Technically, national treasures or important art objects may be exported, but the exportation requires legal action by the Minister of Education with the advice of the Committee for the Preservation of National Treasures and the Committee for the Preservation of Important Art Objects. Without their concurrence, no national treasure or important art object may be exported for sale legally.
It should also be noted that while the Supreme Commander legally has the authority to authorize the exportation of Japanese national treasures, such authorization is extremely unlikely and, it is felt, this right would be better as an assumed right, not stated in writing.
Id.
190See ODA, supra note 63, at 31, providing:
The Allied forces recommended five major reforms in 1945: equality of men and women, encouragement of trade unions, liberalization and democratisation of education, liberation from autocratic rule, and democratisation of the economy ....
These measures signified a radical change of the then existing political, economic, and social system and almost amounted to a revolution. Civilian experts and advisers who accompanied the military from the United States played a significant role in shaping these
reform policies.
The reform measures were embodied in the Constitution enacted in 1946. This Constitution, which remains in effect today, has introduced significant changes in the political and social system of Japan ....
The Constitution and most of the other laws enacted during the occupation had been strongly influenced by US law .... This was only natural, since legal advisers to the SCAP were primarily Americans; some of them keen "New Dealers." On the other hand, most major codes which dated back to the pre-war period remained intact ....
Proposals to amend the Constitution which was ostensible imposed by the Americans have never gained popular support.
Id.
191Letter from Charles F. Gallagher, Fine Arts Advisor, to F. Huygen (Aug. 25, 1948) (on file with
author):
#7 This is a black lie. To begin with, SCAP absolutely forbids the purchase of registered objects by allied personnel and it would be impossible for them to get them through customs without a statement from the Ministry of Education to the effect that they are not registered. Further, it is not merely a question of the seller need not report that he sold it, but the buyer must under the present law report, and no matter who he is the sale ofa registered object will come under scrutiny, other Japanese or allied. This sort of conscious misinformation is extremely dangerous and leaves one to suspect just what objects the writer of these distortions has in mind.
192SELECTED DATA, supra note 165, at 1-4.
in order to insure that the directives were properly understood and promptly carried out.' 93 The apparent need to forcefully compel compliance declined as the years of the occupation passed, and in 1948 and 1949 certain steps were taken to relax occupation controls. 194 As General MacArthur noted in a speech in May 1949, "the character of the occupation has gradually changed from stem
rigidity of a military operation to the friendly guidance of a protective force."' 95 In July of that same year, MacArthur noted in a memo to Headquarters Staff:
The necessity for extensive surveillance and execution by the occupation of many special missions relating to the social, cultural, and economic development of Japan no longer exists ... [And the Japanese Government should] generally be permitted and encouraged to exercise normal powers of
government in matters of domestic administration.196
It is important to note, however, that A&M concluded that it was necessary to employ a firm hand in guiding the course of the Japanese Government on the subject of cultural property. In general, CIE documents demonstrate a directed mission to reeducate the Japanese concerning the unique value of their culture and to instill in them a sensibility and perspective favoring cultural property that SCAP believed was lacking. 197 While such a position might appear to be paternalistic under different circumstances and having the luxury of politically correct hindsight, one must remember that SCAP was an occupying force dedicated to the preservation of Japanese cultural property through A&M. It must also be kept in mind that SCAP
engaged in significant ideological reorientation and censorship.198
193 ROBERTA. FEAREY, THE OCCUPATION OF JAPAN SECOND PHASE: 1948-50, at 10 (1950).194 Letter from Colonel R. E. Coughlin, HQ, Shikoku Military Government Region to Commanding
General, Eighth Army (Apr. 5, 1948) (on file with author):
It is the opinion of this headquarters that the Arts and Monuments function is definitely and specifically a function of the Japanese Government and that it should be handled entirely by Japanese agencies. It is possible that Military Government should exercise its usual surveillance function, but even this is problematical. In short, Military Government, in exercising the Arts and Monuments function as an active operation, is doing work rightfully belonging to Japanese agencies. In addition, it is believed that the objectives of the Occupation are hardly being actively forwarded by Military Government activity in this field.
Id. Notwithstanding the above view, A&M continued its active involvement. "S WATERHOUSE, supra note 168, at 10.
196Id. at 11.
:97.See generally MISSIONS, supra note 167.98 See generallySELECTED DATA, supranote 165. While this topic is generally beyond the scope of this
In addition, A&M was staffed by a dedicated group of men and women philosophically committed to preserving Japanese cultural treasures and promoting Japanese art, and its internal documents demonstrate a genuine passion for this mission. It is significant that the people selected to execute the Allied task were westerners who had dedicated their lives to an appreciation of Japanese art and culture. 199 Finally, there are indications that A&M felt that the existing administrative scheme was inadequate and that the Japanese Government at the time of surrender and in the early days of occupation had been less than cooperative in securing and promoting the protection of its own and other countries' cultural property. Some examples of this state ofaffairs lie in the regulations of the Ministry of Education affecting the 1929 Law for the Protection of National Treasures, as it required the Ministry to compile a register ofsuch treasures. The Japanese officials reportedly burned this register at the time of surrender.200 The Ministry was also to have kept records of Important Art Objects pursuant to the 1933 Law. Apparently, execution ofthat task was lax at best. Some records reportedly did survive with respect to the National Treasures category and these were accessible by A&M. Also, in accord with SCAPIN 1774, the Japanese Government was to inventory objects of art and culture of foreign origin that were in their control. In accord with a report of Gallagher, A&M Fine Arts Advisor to the Chief, Religions and
article, one might find relevant examples related to cultural property concerns such as the collection and suppression of Japanese war paintings and the censorship ofJapanese art depicting nudes. Archives 5848(12), Letter from SCAP, CI&E, to Col. J.P. Buehler, Engineering Office (Aug. 7, 1946) (on file with author) (noting that 151 official Japanese war paintings had been assembled and were in custody in Ueno Park Museum and would be secured and retained); Archives 5848(21), Internal Memorandum from Charles Gallagher, Asst. Advisor on Fine Arts on Sale of Ukiyo-e (Apr. 19, 1948) (on file with author) (noting that paintings were pornographic and indicating that, should the sellers return, it was the authors intention to hold them until they could be arrested).
199Memorandum from GHQ, SCAP, CI&E Division, Research Unit, Cultural Resources Research Branch, to Parallel Division 2 (Sept. 18, 1947) (on file with author) (providing translation of a transcript of Education Minister Morito's reply to Interpellation in Diet on Report and Loss of National Treasures):
During his stay Dr. Warner made frequent remarks like the following:
Old art objects are not corpses. We do not look at it because it is old. And not because it is rare. Also not because it is beautiful to the eyes. The people, the kind ofpeople that produced these, are what we really see through these old art objects. It is through these that we strive to know what their spiritual lives, their intellectual lives, their daily lives, their customs were like.
Id.
2D0 Preservation of National Treasures, LawNo. 17, art. 1(1929) (Japan), in SCAP Civil Info. and Educ.
Sec., Report of Conference with Mombusho Rep. (Jan. 22, 1947) (on file with author). Article 1states, "The Ministry of Education shall provide a Register ofNational Treasures and register them therein." Id. Following Article l is a note that reads, "[t]his was burnt by the officials at the time of the surrender." Id.
Cultural Resources Division, dated January 19, 1949:
The Japanese Government did not make "an honest effort" to comply with SCAPIN 1774. They were dilatory, evasive, haggled over questions and finally produced two institutions out of a total of some 800 that had objects coming under the definition of SCAPIN 1774. The fact that only four looted items were reported from private collections of individuals (the basis for the directive) is highly suspicious. It is also the firm opinion of the undersigned that there is a great deal of looted property still around, but that much stronger methods than those heretofore taken will be necessary if it is to be uncovered.2 °1
Finally, the statutory structure, even before the 1950 Law, was deemed inadequate by A&M. They had initiated an effort, for example, to create a category between those ofNational Treasures and Important Art Objects. This intermediate category was entitled Important Cultural Property. The hope was to constrict the class of Important Art Objects and make administrative movement of objects between classifications less frequent. The Agency for Cultural Affairs of Japan followed the recommendation. 202 It had views opposed to those of the Japanese Government concerning the government's relation to the Japanese people and their property. The Japanese people themselves had expressed reservations about the sincerity and initiative of the Japanese Ministry of Education. A news article that appeared on January 28, 1946 stated:
[s]trange to say, the Ministry of Education which was full of formality and bureaucratic egotism has for a long time been nothing but a sort of state organ hindering the elevation of culture and the arts.20 3
A&M also had a reputation for independence and initiative among SCAP organizations. In the words of Langdon Warner, "a GHQ officer told me the other day that Arts and Monuments was known to be the only division that ran
201Memorandum from Charles F. Gallagher, Fine Arts Advisor to Chief, Religious and Cultural
Resources Division (Jan. 19, 1949) (on file with author). See alsoMemorandum fromMr. Bunce, CIE to DC/S SCAP (Jan. 26, 1949) (on file with author) (regarding inventories of objects of art of foreign origin and documenting certain looted items that had come to CIE attention).
202 Lee, supranote 8, at 94.203 Press Translation No. 1021, GHP, SCAP, Allied Translator and Interpreter Sec., Item 2: Promotion of
the Arts (Jan. 30, 1946) (on file with author).
by itself and knew what it was doing., 20 4 These and other considerations led to the very active involvement of A&M in the affairs of the Ministry of Culture and with the Diet as it considered and passed the 1950 Law.
C. The BusinessofArts andMonuments
In general, the Arts and Monuments branch was responsible for making recommendations and overseeing the management and financing of initiatives for protecting, preserving, restoring, salvaging, and properly disposing of works
of art, antiquities, cultural treasures, museums, archival repositories, historical and scenic sites, and historical and natural monuments. In executing that task, A&M was charged with inventorying and inspecting as many cultural sites and objects of art as possible; compiling reports of field visits; attending and reporting on conferences, both private and public; responding to project requests of SCAP; reviewing press releases and commenting on public statements and interviews; reviewing Japanese government documents relating to art and cultural property; composing lists of collection contents; assessing war damage to relevant objects; reviewing field examiner reports; and generally, assisting the Japanese in protecting cultural property and facilitating the display of and access to the objects.20 6 The division of labor fell naturally upon the members of the group in accordance with their interests. Popham was a garden designer and architect by profession and preferred the responsibility of inspecting the parks and gardens and remote temples. Gallagher was a generalist, and Lee favored temples and private collections.2 °7 The members of the branch also attended routine meetings with staff officials, held regular gatherings with appropriate government officials, responded to inquiries about cultural property from private individuals and groups, and formulated advice on
20 8
pending legislation.
Reporting on the activities of A&M, the Missions and Accomplishments document of General Headquarters ("GHQ") of SCAP, January 1, 1950, states:
Damage to cultural properties has been investigated, and field inspections have been made of as many as possible of the 15,039 collections, structures, and separate objects registered as National Treasures or Important Art Objects. Twelve of the fourteen
204WATERHOUSE, supranote 168, at 206.
205MISSIONS, supranote 167, at 26.
206Lee, supranote 8, at 92.
207 Id. at 94.
208id.
national parks of Japan have been surveyed and programs have been initiated for the reorganization of their administration and the expansion and improvements of their equipment and facilities for the public benefit. Uses of cultural properties in the reorientation program have been devised, and recommendations have been made concerning the use of the fine arts in familiarizing the Japanese people with the history, institutions and culture of the United States and other democracies.2 °9
In the words of Sherman Lee, "[t]he whole experience was exhilarating and educational, unique and cumulative ....
D. The Factors Callingfor a New Japanese Commitment to Protect CulturalProperty
Popular accounts credit the damage to the Kondo (Golden Hall) of the seventeenth century temple complex, Horyuji, and the looting by American and Allied servicemen and GHQ staff as the events that catalyzed the passage of the Law for the Protection of Cultural Properties of 1950. This, however, is an incomplete assessment and a far too simplistic conclusion. There seem to be at least eight precipitating conditions that called for the legislative response. They include:
1.
The pressures of the Japanese tax scheme, including the property, estate, and sales taxes;
2.
The sale of objects in response to other needs perceived by the indigenous population;
3.
The fear of export of cultural property following any form of transfer;
4.
Theft;
5.
Vandalism affected upon objects and monuments;
6.
Risks of fire;
7.
The use of objects by occupation forces;
8.
Perceived Japanese perspectives, including gender attributions, concerning the place that art should occupy in the life of the Japanese people; and
9.
Perceived Japanese perspectives concerning the role that
209 MISSIONS, supra note 167, at 26.210Lee, supra note 8, at 102.
government should play in protecting such goods.
Following is a consideration of the influence that each of the conditions
had upon Japan during the period of its review of its cultural property laws. Each ofthese influences on Japan during its review ofits cultural property laws is further examined below.
1. Taxation, Black-MarketSale andOther TransferandExportationIssues
a. The Propertyand Sales Taxes
In November 1946, the Japanese Government promulgated a property tax; it had a significant negative effect upon the preservation and protection of cultural properties. The subject statute provided that a "Capital Levy shall be imposed on an individual ...in respect to the whole property he owns at the
21
date of investigation." The tax was graduated and the rates ranged from zero percent on
property valued at less than Y100,000 to ninety percent on values over \15,000,000. The tax was meant to redistribute wealth among the Japanese in an egalitarian manner. In purported promotion ofthis policy, Chapter 1, Article 2 of the law exempted certain types of property in order to minimize a regressive effect. Daily necessities, such as furniture, utensils, clothing, and other personal property were not subject to the tax.
The lack of exemption for art or cultural properties was noteworthy.21 2
Other provisions of the general tax scheme, as gleaned from the discussions of A&M with Marquis Hosokawa, Chairman of the National Treasures Commission, and with the Director of the Imperial Household included:
211Memorandum from Howard C. Hollis, Chief, A&M Division, to Chief, CIE (Sept. 5, 1946) (on file
with author) (regarding the Capital Levy Bill). See, Memorandum from GHQ, SCAP, CIE Division, Research Unit, supra note 199, at 3:
We are all aware ofthe property tax that came into effect November 1946. And I hear that among the 1,400 odd owners of national treasures and important art objects, a considerable number of them have either hidden or sold the objects; the Ministry of Education and the society for Preserving National Treasures are standing by helpless.
According toinvestigation made by the Ministry of Home Affairs, about 800,000 swords were delivered to the Allied Forces as weapons, about 100,000 were permitted to remain as fine art objects, and approximately 100,000 were concealed to escape from the property tax.
ld.
212 Memorandum from Howard C. Hollis, Chief, A&M Division, to Chief, CIE (Sept. 5, 1946) (on file
with author) (regarding the Capital Levy Bill). See, Memorandum from GHQ, SCAP, CIE Division, Research Unit, supranote 199, at 3.
1.
The tax was to be paid in a lump sum.
2.
A similar tax was to be levied on museums.
3.
There was no exclusion for gifts to museums. In the event that an object was donated to a museum, the tax was to be paid prior to the gift.
4.
There was also a sales tax imposition of 80% of the value of the sale, and the tax was imposed upon the total sale value, not just the profit.
5.
Property donated to government institutions was exempt from the various taxes.213
Prior to this tax scheme there had been no impositions upon art or its sale. The tax law was a dramatic departure from past practice, and it had a significant negative impact upon the protections of cultural property. 214
The imposition of tax resulted in decertification requests for many treasures and important art objects. In addition, many objects were sold secretly or hidden.215 A report appeared in the newspaper DaiichiShimbun on November 19, 1946 titled "National Treasures Being Sold in Black-market to Avoid Payment of Property Tax. 216 The story included the following observations:
The protection of national treasures and important works of art is a very important problem for present day Japan in view of promoting cultural property. Despite this [the law] transactions of these articles among private persons are rampant for fear of the imposition ofthe property tax, and to recover financial difficulties caused by the new Yen ....
213Memorandum, Taxation of Collections (Aug. 12, 1946) (on file with author).214 Information Memorandum to Parallel Division, Translation of Interpellation, from the Civil
Information and Education Section, Analysis and Research Division, Research Unit, Cultural Resources Branch 4 (Sept. 18, 1947) (on file with author) (translation of transcript of Education Minister Morito's reply to
interpellation in Diet on export and loss of national treasures).
But I am sorry to say that a lot oftraditional fine arts and beautiful natural sites were burned and destroyed by the war. Above all I am afraid that these remaining excellent fine art objects are being hidden or sold secretly as a result of inflation and property taxes.
ld.
215 Minutes from the 1st Session of the National Diet, supranote 140.216 NationalTreasures Being Sold in BlackMarket to Avoid PaymentofPropertyTax, DAICHI SHIMBUN,
Nov. 19, 1946 (on file with author).
The Government designated national treasures... and other articles ....The same authorities have been in charge of their protection by providing restrictive regulations on reports of regarding their transfer ...and [there are] penal clauses for violators ....
In addition to this, the new government has decided to impose a property tax on national treasures and important works of art, which will be enforced shortly. As a result, many people are selling these articles at high prices to the new rich merchants, capitalists, etc., to evade taxation and to earn new currency.217
On August 31, 1947, in a comment offered at a meeting of the Lower House of the Diet, Shigeyoshi Fukuda, Speaker for the Lower House of the Diet, observed "It is said that in evading property taxes, the owners of National Treasures and Important Art Objects are hiding or selling them secretly, and even exporting them." 218 With respect to objects being hidden, the newspaper, Yomiuri Shimbun, reported on December 9, 1947:
Owners of works of art, who once strove to have their property designated as national treasures, are now trying to disclaim the designation to avoid paying property tax. Hence, valuable works of art designated as national treasures have disappeared and every effort to find them has resulted in failure.
Every owner of old art treasures is doing all he can to keep
217 id.
218Meeting of the Lower House of the Diet Opened,Interpellation on the Preservation of National Treasuresand ImportantArt Objects, Question by Shigeyoshi Fukuda, ASAHI SHIMBUN, Aug. 31, 1947 (Sept. 9,1947) (on file with author). Morito comments:
The defeated Japan seeks to survive asa cultural state and for this purpose she must first of all have beauty ofnature and attractive objects d'art, but much ofthe natural beauty as well as many artistic treasures ofbeauty and of long heredity have been, lamentably destroyed or burned out by the war; especially as pointed out by Mr. Fukuda, those objects of art that survived the ravage are in danger ofbeing either hidden away or scattered or carried away on account of the property [sic] tax and inflation.
See Minutes from the 1st Session ofthe National Diet, supranote 140.
his property secret from the public.219
In sum, the imposition of taxes had a significant adverse effect on the preservation of cultural property. Numerous objects were reportedly sold, exported or lost in order to avoid the tax.
As a result, efforts were mounted to repeal the tax laws, reduce the rate of taxation, and/or exempt art or cultural property. A&M opposed the tax and supported a scheme of tax relief for artistic properties. It concluded that the tax scheme was inconsistent with the general policy favoring the protection of cultural property and felt that there should be an exception engrafted for such property that would treat it more favorably. Hollis, in a memorandum directed to the Chief of CIE, observed:
It is not understood how the proposed graduated scale of taxation can bring about a more equal distribution of wealth, as it appears that the distribution will be purely totalitarian in principle, with the government appropriating private property.
The heavy tax on ownership and the heavy sales tax will force a flood of donations to the Government institutions, thereby further pauperizing the people and effecting a totalitarian grab for the benefit of the state alone. Moreover, these taxes will bring hardship to those who have been public spirited and not to those who have been secretive. Such taxes will cause further black market operations.22 °
His statement contains certain recurring themes that would be significant in the negotiations leading to the 1950 law. These themes include that the Japanese Government did not, in the eyes of A&M, seem genuinely committed
to protect its cultural property; an A&M belief that the Japanese people had a right to protection of their heritage; and that the exercise of certain controls over property, often desired by the government, would interfere with individual
rights that were to be protected under the new Japanese Constitution.
Notwithstanding the efforts of A&M, the portions of the law that would have exempted national treasures and important objects of art from taxation were excised.221 An article in the Tokyo Shimbun of February 23, 1951 continued to note the tax problems and the inability to effect change:
" , NationalTreasures Hidden to EvadePropertyTax, YOMIURI SHIMBUN, Economic Series 2242, ATIS
Press Translations No. 489, Dec. 19, 1947 (on file with author).
220 Press Release, U.S. Dep't of State, The Conservation of Cultural Property, supranote 171, at 2-3. 221 National TreasuresandTax Exemption, TOKYO SIIIMBuN, Feb. 23, 1951 (on file with author).
Intimidated by taxes, national treasures and important works of art owned by individuals are going underground one after another. It is also feared that some are flowing out overseas. To prevent this a campaign has been launched for exempting these objects from taxation, but the tax authorities are reportedly hardly to be persuaded.222
b. The Estate Tax
Japan imposed an Estate Tax, and regulations were passed in early 1946 that provided that such taxes could be paid in kind. National Treasures and important works of art could specifically be transferred pursuant to the regulations to satisfy estate obligations. The scheme included a vehicle whereby property transferred in kind would be put up for auction by the government. Some feared that the tax would lead to the loss of cultural property. An August 28, 1946 report in the Asahi Shimbun observed:
Those who can buy the works of art offered at auction by the Government will be the blackmarketers [sic] with plenty of cash money on hand, or foreigners buying through Japanese agents... if an ...excellent collection of works of [sic] art be scattered and lost, or treasured articles of civilization be concealed, advocation of the establishment of a cultural nation will be meaningless. This is the fault of the misled administration of national treasures
223which we have had up to now.
c. Sale to PurchaseNecessities
Consistent with prior observations, the prosecution of the war had taken an economic toll on the population of Japan. Food and clothing were in short supply. It was a country on the defensive economically, and its people suffered deficiencies in basic staple goods. As Minister of Education Abe stated on January 30, 1946 in a newspaper interview, "at present there is a tendency to ignore arts because ofthe imenent [sic] food crisis., 224 A consequence was that owners of National Treasures and important art were selling them in order to
222 Radiation:National Treasuresand Tax Exemption, TOKYO SHLMBUN, Feb. 23, 1951 (on file with
author). 22 The Estate Tax andNational Treasures,ASAHI SHIMBUN, Aug. 26, 1946 (on file with author). 224Memorandum from W.D Popham, supra note 175, at 1.
survive. A June 30, 1946 article in Stars and Stripes, "Japs Would Trade Art for Food," illustrates the sale of art for basic needs. The story stated that artists and businessmen were combining efforts by gathering the best of Japan's fine art for export to the United States in return for food.2 5 As reported in an editorial that appeared in Jiji Shimpo on November 24, 1949, more than four years following the surrender,
[w]hat an ancient family disposes of first when it becomes poor is its family treasures. Treasures sometime become an expedient means which offer them capital with which the family fortune is retrived [sic] or by which a temporary makeshift means is devised for their living ....[T]he economic capacity and the people's living.., must not be left out of consideration. 6
d. Theft and Vandalism
Depredation and abuse of culturally significant property by the affirmative or negligent acts ofpersons was common. A cartoon that appeared in Stars and Stripes on January 25, 1946 is symbolic of one of the problems confronted by any command, but particularly of one in an occupied area. It depicted a private with cupped hands giving another soldier a boost over a fence upon which a sign was posted that boldly said "OffLimits." The caption under the drawing stated: "Quit worrying. We can always say we didn't see
227
the sign.
More serious threats and behaviors were also evident at the time. For example, Kinji Fujikawa, Executive Secretary of the Imperial Household Museum, reported what was considered a minor incident to the Provost
225 Inter-Division Memorandum from J.M.Pluiner, Fine Arts Advisor, to Chief of the Religions and
Cultural Resources Division, Civil Info. and Educ. Sec., SCAP (June 20, 1949) (on file with author).
226Editorial, NationalTreasures andNationalPower,Jut SHIMPO, Nov. 24, 1949, at 2 (on file with
author).
227Schell, Occupation Outbursts, STARS AND STRIPES, Jan. 25, 1946 (on file with author). The U.S.
Military recognized the need to prevent vandalism:
4. Regulation for the Administration of Cultural Structures and Obiects.
1.They should take necessary action, on the concurrence of the arts and monuments section, and upon request of the proper Japanese authorities, to place "off limits" to civilian or to any or all service personnel, and to authorize the posting of guards, Military or Civil, as may be needed to prevent unauthorized entry, theft, damage, defacement, sacrilege or improper use of any building or area.
Memorandum from Walter D. Popham, Chief, Arts and Monuments Section, United States Army Forces,
Pacific, Military Government Section, tothe Chief Military Government Officer (Sept. 1, 1945) (on file with author).
Marshall by letter dated December 4, 1946. In the letter he described the events of November 28, in which a group of three soldiers, evidently of the Allied forces, were discovered trying to open a showcase containing a lacquerware exhibit. According to the report,
[a] soldier with a mark of private first class produced a bunch of keys in a ring, and thrust one of them in the keyhole .... The museum guard who was standing near one end of that room called to the soldier .... [t]he soldier tried to turn the key which was stuck; . . . The group looked embarrassed .... Another of the group who had gilt "U.S." on his collar then tried his hand at the
key, and with difficulty succeeded in extracting it. 228
The soldiers apparently left the museum without having caused any damage. They were not apprehended.
It would be improper to assume, however, that occupying forces posed the only threats. Threats to the security of cultural property came from all quarters. Numerous instances that were not the subject of official reports but indicated possible misconduct by various groups in addition to military personnel also occurred. A very brief survey, provided solely for purpose of illustration, could include:
Possible Thefts: 229
1.
Daigo, Daige-ji: Gojincte was broken into by a soldier from Otsu. Certain small religious objects were purportedly taken, but no other damage was reported.
2.
Kamakura, Villa Senksanse: The building was entered forcibly and several small objects were taken.
3.
Mt. Mitake, Astronomical Observatory: Possible pilfering by American soldiers.
4.
Mt. Heizen, Sakamoto, Enryaku-ji: Several buildings were broken into and minor thefts occurred.
5.
Osaka, Osaka Castle: Historical exhibits suspected to have been removed by soldiers.
6.
Tokyo, Imperial Household Museum: Small objects
228Letter from Kinji Fujikawa, Executive Secretary, Imperial Household Museum, to Office of the
Provost Marshall ofGreater Tokyo (Dec. 4, 1946) (on file with author).
229.Memorandum from Captain, Walter D. Popham, for OIC, Arts and Monuments Division, (June
20, 1946) (on file with author); Topic of Today: Times When DisastersOvertake National Treasures,YUKAN ASAHI, July 31, 1950 (on file with author).
reportedly taken from storeroom.
7.
Tokyo, Nezu Collection Storehouse: Objects of minor importance removed in trucks.
8.
Yushima, Holy Temple: Three bronze images of Korean dogs from the roof were stolen and one was broken into pieces to allegedly sell to an antique dealer for two thousand yen.
Possible Vandalism: 230
1.
Hayama, Imperial Seaside Villa: Report that soldiers entered the building and disturbed the property of a caretaker.
2.
Kyoto, Yawata Shrine: A wooden statue of a guardian god was removed from the temple and carried to the Shijo bridge. Wooden headgear and quiver for arrows was broken. Six stone lanterns were slightly damaged by soldiers while they were upon them taking pictures.
3.
Nara, Todai-ji Temple: Damage was caused to the figure of a guardian god in front of Daibutsuden.
4.
Okayama, Korakuen Garden: Trucks were driven over paths in the garden causing damage.
5.
Otsu, Miiders, Onjo-ji: The pagoda was forcibly entered and damage was done to the interior. Other minor buildings were broken into and damaged. Soldiers made improper use of grounds and it was made "off-limits.
6.
Tokyo, Shiba Park: Bronze ornaments were removed from lanterns and damage was also observed to a stone carved with numerous Buddhas.
e. Vagrancy andFire
Like food and clothing, shelter is one of life's common necessities. The homeless of Japan frequently inhabited national monuments and treasures in search of shelter. For example, the mausoleum of the second dynasty of Tokugawa Shogun in Zojoji, Shiba, Tokyo, a national treasure, was used as the unauthorized residence of two or three families.23 1 The five-storied pagoda in Kanyeiji, Uyeno Park in Tokyo was the sleeping berth of vagabonds.212 It was
230Memorandum from Captain, Walter D. Popham, for OIC, Arts and Monuments Division, (June 20,
1946) (on file with author); Topic of Today: Times When Disasters Overtake National Treasures, YUKAN ASAHI, July 31, 1950 (on file with author).
231National Treasures and National Power, supra note 226.
232 id.
not only that the treasures were being used, however. Frequently, they were being abused. It was observed that at Kumamoto Castle, Kyushumjobless men were stripping the floorboards and using them as firewood.233
This implicates another significant problem that Japan faced during the occupation, namely, fire. Fire was a tremendous risk since almost all of the necessities of life were composed of or depended upon wood, grass, or paper. Unfortunately, smoking and the lighting of casual fires was commonplace. While precautions were attempted, including prohibiting smoking in locations where shops or stores selling celluloid articles were located and prohibiting the lighting of fires in the neighborhoods of markets, 234 it was difficult to police and control a population that had other pressing matters on its mind. Negligence was a tremendous problem. The Horyuji fire had captured the attention of the press and provided the public with reason for supporting the effort to protect cultural property. The fire was the result of the neglect of the workers at Horyuji. They had failed to monitor and turn off electric cushions used by them, resulting in the conflagration.235
In addition, lifestyles were hard to change, as evidenced by a story that appeared in Jiji Shimpo on October 9, 1950:
By the stone staircase (at Kiyomizu-do Temple in Ueno) there is a board which says no smoking within 30 meters. Beside it a woman peddler was smoking, and being warned by an inspector, put off the light as calmly as if nothing had been wrong. Behind their back, seeing this scene, a forty year old man in a sack coat struck a match and lit a cigarette. Inspectors are busy. Eight persons were warned in five minutes. 236
The incident was not an isolated one. At the Toshugo Shrine, match sticks were found to have been scattered everywhere, and, at other shrines, vagabonds were reported as making fires without reserve. 237 Losses began to mount. A November 24, 1949 editorial in Jiji Shimpo presented a list of treasures lost or damaged by fire:
233Id. at 1.234No-Smoking Zones to be Set Up in Tokyo, ASAHI SHIMBUN, Feb. 19, 1950 (on file with author).235 Horyuji Fire Trial Begins, MAINICItl, Sept. 21, 194 (on file with author). See also Sub-Editorial,
Horyuji Fire, SHIN YUKAN, Jan. 29, 1949 (on file with author).
236National Treasures Will Easily Catch Fire, JtJl SHIMPO, Oct. 9, 1950 (on file with author). 237Id. Niten-mon Gate of the Senso-ji Temple ("Three vagabonds are boiling water sitting on mats at the
left comer of the gate. When an inspector approached, a shaggy vagabond said smoothly, I'm fully careful of fire, sir.") Id.
Toward the end of February, Tsutsui Gate of Matsuyama Castle in Shikoku, another national treasure was lost by fire ... though not entirely burned, there are many instances of old castles, temples and shrines, classed as national treasures, that are damaged by fires... to such an extent that they may be entirely lost sooner or later. Among the buildings, Matsumoto Castle, Himeji Castle, Matsue Castle, the Hoodo in Byodo-in of Uji, Doshunji of Yamaguchi, Kondo in Chuson-ji of Hiraizumi, various old temples and shrines in Kyoto and vicinity as Tomyoji, to begin with may be counted.238
This form of loss, added to others, demanded a coordinated national response.
f Use by Allies
The Allies, in occupation, required space to place offices, store vehicles and equipment, and house staff and dependents. In addition, the incidental use of certain areas and the increased traffic and congestion created thereby often
put recognized cultural locations at significant risk. In addition to the interventions that were required as a result of purported thefts and other depredations, there were occasions when authorized actions of SCAP and its staff put treasures at risk. A&M was involved in moderating and mediating these problems. One such event was a proposal of the Engineering Section of SCAP to construct housing for military dependents on the grounds ofthe Kyoto Shokubutsuen, the Kyoto Botanical Gardens.239 This was met with significant opposition not only by the Japanese, but also by A&M and the Cultural Resources Research Unit. Weir prepared and presented a lengthy and detailed report outlining the proposed use of the area and offering an alternative. A&M supported the report as part of its effort to preserve cultural property. In a memo of June 13, 1946, Walter Popham noted:
The cultural value of the area should be obvious and I think Mr. Weir has done an excellent job in presenting the facts. I cannot refrain from adding my own protest at the thought of taking over this area and thus destroying not only one of the two worthwhile Botanical gardens in Japan. But also the result of some thirty
23 NationalTreasuresand NationalPower,supra note 226, at 1.
239 Memorandum from Captain Walter D. Popham, Chief, Arts and Monuments Section, U.S. Army
Forces, Pacific, Military Gov't Sec., to the OIC Arts and Monuments Division 14-15 (June 13, 1946) (on file with author) [hereinafter Popham Memorandum of June 13, 1946].
three years of work, and one of the recognized cultural and
scientific institutions of Japan. 240
g. The Attitudes ofthe Populationand Government to Art and Cultural Property
While this Article does not purport to be a psycho-social analysis of the Japanese mind, it is worthwhile to note certain purported attitudinal trends that suggest that cultural property and its care were not the foremost concern. When considering the paucity of the necessities of life during the period ofoccupation and reconstruction and the resulting priorities, there are substantial indications from the Japanese people themselves that the environment was not particularly sensitive to preservation of art and artifacts. As one author suggested in the Tokyo Shimbun on July 4, 1950:
We often have a feeling that we cannot cry too much or resent too much certain matters. We have both feelings at the same time at the loss of the Golden Pavilion. To our regret, we see Japanese everywhere suffering from an abandoned feeling due to defeat in the war, and they handle things very roughly .... 241
Other authors ofthe period have suggested that Japan was in the midst of a cultural awakening during the period of Occupation, and that it had a difficult time shedding the sleep of aged traditions and perspectives. In general, arts and its artifacts have been considered a culturally effeminate form of expression and, as the promotion of the arts and the protection of cultural properties at a government and institutional level was the province of a generally male dominated structure, it was not placed at a high level in the hierarchy of perceived or acceptable needs. As a consequence, the arts were suffering due
240Popham Memorandum ofJune 13, 1946, supranote 239. See also Memorandum from Captain Walter
D. Popham, to the Chief Military Government Officer, Working Instructions for Ken Level Military Government Personnel Relative to Arts and Monuments (Sept. 1, 1945) (on file with author) providing:
5. Regulations for the Military Use or [sic] Occupancy of Cultural Buildings. All Military and Naval personnel are instructed to prevent the military use or billeting ofarmed forces, in any building of cultural, historic, religious or artistic value, except in cases where no other suitable building is available. There are few if any cases where such buildings should be appropriated since in general, these buildings are unsuited to military usage, and also because of the delicate structure and surroundings, and the fragile character of the decorations, it is impossible to protect such structures from irreparable damage which any sort of military use would cause.
241 Sub-Editorial, Look Outfor Fire,TOKYO SHIMBUN, July 4, 1950 (on file with author).
to a gender gulf. As Mr. Rusburo Ihira noted:
In Japan, beauty and daily life are often thought apart. Here is a serious defect in the fabrics of culture .... Beauty should not exist apart from our daily life.... In Japan, however, the beautiful is insulated from a daily life and this has been especially so since the Meiji Era.
This lack of popularization of art can be attributed to a variety of causes. In the first place, the Japanese have an erroneous idea about beauty. They want to associate beauty with a feministic melancholy and luxury. This notion is as erroneous as the feudalistic concepts that masculine virtue consists of frugality and fortitude only. It is deep rooted .... Art has never had a place in the history of the development of culture.242
From a third point of view, the general attitude of the population and its average community member was not perceived as naturally consonant with that required to protect cultural property. In this regard, gender was not, apparently, significant. In the words of an editorial in the Tokyo Shimbun ofNovember 30, 1949:
It is reported that even the general public can notice Castle Matsumoto warped and leaning to the right. Professor Fujishima of Tokyo University has reportedly said, "The castle will acceleratively (sic) crumble if left as it is." As this is the oldest of important edifices which survive in the form of castles, spontaneous crumbling must have occurred. But as this is as famous as the castles in Matsue and Himeji, we want it to be reinforced somehow or other. It is reported that people who visit this old castle break off branches of trees or carry away broken pieces of the stone wall, resulting in further devastation of the castle. Such acts cannot be called thoughtless.
In fact, most Japanese are said to have extreme indifference in their sense of care for private and public objects. It is true that they have disease such as this. That vagrants make a fire or that men and women pluck grass or flowers in parks or precincts of temples and shrines are good examples. This feeling caused an
242Beauty Should Not Exist Apart from our Daily Lives, NIPPON TIMES, June 29, 1946 (on file with
author).
accidental fire of the Horyu-ji Kondo, total destruction of the Tsutsui Gate of Castle Matsuyama and a fire of Castle Matsumae. "The cultural goods law bill" is to be presented to the ordinary Diet and an organization is to come into existence for preservation of cultural goods, but the mental attitude of the people comes into question first. For instance a Diet member reportedly said in the Diet, "well, protection of cultural goods! Indeed this is a cultural nation. Shall we protect electric refrigerators also?" If he is making a joke, he is out of due limits, and if he is serious he is stupid. As long as such persons exist, a hundred cultural good preservation committees will be meaningless. The mental attitude
of the people is most important. 243
There is little question that there was a general perception at the time that many treasures had been neglected for long periods, were decaying, and were in significant disrepair. Temples and shrines were considered in despicable condition. Some, like Warner, were not as pessimistic as most. Concerning certain art objects found in Kyoto and Nara, he noted that while preservation conditions of art objects in Nara were good, there was termite infestation and a mildew problem. The Kyoto National Treasures Preservation Association communicated a less optimistic point of view, however, in a petition that it transmitted to Mr. Kotaro Tanaka, Minister of Culture in 1946. It observed:
Although we are sacrificing ourselves as the owners as much as possible for repairing our own national treasures, as we believe such sacrifice is morally duty-bound, it has become almost impossible nowadays for us to continue maintaining them at our own cost because of the inflation prices ofcommodities so high as beyond our private financial power. Those owners of seriously broken down buildings are those who have lost the opportunity of repairing their own treasures because of their nonqualification as of the recipient of a national subsidy due to their lack of the private paying capability provided in the National Treasure. [sic] Preservation Law. It is almost impossible for them to continue
repairing at the existing percentage .... 244
It was common knowledge that the repairs at Horyu-ji were proceeding slowly
243 Sub-Editorial, ProtectionofCulturalProperty,TOKYO SHIMBUN, Nov. 30, 1949 (onfile withauthor). 244 Petition from Kyoto National Treasures Preservation Association, to Mr. Kotaro Tanaka, Minister of
Education, at 1 (Dec. 2, 1946) (on file with author).
at best, and the state had been helping to defray the cost of those repairs since 1934 by providing a subsidy of Y 125,000 per year.245 It was reported that the annual cost for repair and preservation of national treasures, including images, buildings and paintings would amount to approximately Y 100 million. The state appropriation during that same period was only V 15 million. At that time in 1949, it was predicted that thirty to forty percent ofnational treasures would be lost within four or five years. As one writer observed, "[T]he recent Horyuji fire is not caused by leakage of electricity or a blunder, but rather ... by the niggardly spirit of a nation ...,246
In sum, the most significant problems with respect to the protection of cultural property seemed to have, in fact, related to the attitudes of the populace and the lack of adequate economic support provided by government. The prior cultural property laws had been put in place by well-meaning legislators. The resources, however, had not been budgeted to support administration of the laws.
[T]he problem of preserving cultural property is, in the long run, an economic problem. However repeatedly the national preservation system may be revised, effects of changing for the better cannot be expected greatly, unless the economic background is strengthened.247
A&M was well aware of this condition, and through repetitive meetings with government officials, including weekly meetings with the Mombusho, they expended considerable effort to ameliorate the condition. By 1950, the time had come for a renewed commitment to preservation of cultural property and the Arts and Monuments Branch was a catalyst for this change.
245Report About The Execution of Social Education Programs After the Termination of the War (Undated) (on file with author); see also Iloryuji Fire,supranote 235, providing:
Though it is not clear whether the fire wascaused by electricity leakage or by blunder, anyway, there is no doubt that complete measures for prevention were not considered.
This is because no serious efforts were made for the preservation of the national treasures while designating them as national treasures. It is a well-known fact that the repair work on the internationally famous Horyuji was making poor progress.
ld.
246 Id....National Treasuresand NationalPower,supranote 226.
V. THE 1950 LAW FOR THE PROTECTION OF CULTURAL PROPERTIES ANDSPECIFIC ACTIVITIES OF THE ARTS AND MONUMENTS BRANCH OF
SCAP
In addition to the high level of daily involvement by A&M in the
promotion of the preservation of cultural property, A&M also appears to have
been actively involved with, and had intimate knowledge of,the details of the
efforts to modify and improve legislation concerning cultural property
throughout the period of Occupation. For example, during early attempts to
reform the laws, concerns had arisen in Mombusho with respect to the
classification of goods. A&M had become aware that the categories could be
manipulated so as to frustrate the tracking of important art objects. As a result
of A&M discussions with the Bunkacho (the Agency for Cultural Affairs ofthe
Ministry of Education), a third category, in addition to National Treasures and
Important Art Objects, was added.248
A&M archival records contain such informative objects as a 1947 handwritten document presented to A&M entitled "A Private Draft Concerning
the Revision of the National Treasure Laws." In that document
recommendations were made, and explanations and analysis were offered
concerning proposed changes to the National Treasures Act. At the close ofthe
document it explicitly states: "This draft is the purely private draft made by
Fujita Tsuneyo and Ooka Minoui." Accompanying the draft is an official
SCAP Report on Conference cover sheet signed by Sherman Lee. Among the
interesting items noted on the cover sheet are the following:
1.
Fujita was a representative of Mombusho.
2.
The document was presented to A&M at one of the regular weekly conferences it had with Mombusho representatives.
3.
The "informal and personal" suggestions with regard to a new
National Treasures law as proposed by Fujita and Ooka were discussed at the meeting.
4.
Fujita agreed with the suggestions of A&M personnel as to the
recommended substance of such a law and also agreed to discuss the matter further with other representatives of
Mombusho.
5. The parties had agreed to continue their discussions.249
248 Lee, supra note 8, at 94.
249 Report of Conference, in the Arts and Monuments Division Office, Subject: Weekly Conference with Mombusho Representative (Jan. 22, 1947) (on file with author).
From this and other documents, one can readily observe not only the investment that A&M had in a sound cultural property law, but also the significant participation and influence it had in the drafting of the various statutes.
The Ministry of Education did, in fact, prepare a bill for the revision of the National Treasures Law. The highlights of the bill included:
1.
A shift of emphasis from ownership as a foundation of preservation as found in the existing law to state control of cultural assets.
2.
A clarification of state subsidies for the repair of national treasures.
3.
Measures to enable the government to purchase national treasures from temples and shrines if preservation could not be properly carried out.
4.
Significant government control over cultural property.
5.
The curtailment of the export of cultural treasures.
6.
Exemption from taxation of certain transactions concerning cultural property.
A handwritten report entitled "Remarks Apropos of Revisions of the N.T. Law Prepared by the Education Ministry" also appears among A&M records.250 It is a section-by-section analysis of the bill. Of significant interest, however, are the notes and interlineations that appear to have been made by an unknown reviewer. At the top of the document in large hand printing is the statement: "This must be stopped." Below that statement is bold script stating, "See Sect. 3 Which violates constitution." The comment in the analysis of section 3 explains that it proposed to create a compulsory designation system. A comment to that section observes, "it infringes upon personal rights." Other comments on other sections decry bureaucratic interference and call for the
protection of private rights.25 1 At the time, the National Museum was also working on a separate plan for the protection of cultural properties. The essence of that plan was to transfer the management of national treasures to the museum.
The drafting of the specific legislation that would become the Law for the Protection of Cultural Properties commenced in earnest in February 1949. There were eleven separate drafts of the bill, and Yuzo Yamamoto, Chairman
250 Remarks Apropos of Revisions of the N.T. Law, Prepared by the Education Ministry (Undated)
(on file with author).
251 id.
of the group responsible for the legislation, the Education Committee of the House of Councilors, reported that the group had met no fewer than fifty-five times in the course of its deliberations to listen to and adopt
252
recommendations.
A report in March 1949 identified the comments of certain influential political party leaders and their respective positions on the preservation of national treasures. They provide valuable insight into the political dynamics with which A&M was dealing and also help clarify the issues important to the political leaders who participated in promulgating the legislation. Democratic Party President Inukai stated:
It is most desirable for appropriations for the preservation and repair of national treasures to be increased immediately. At the same time, it is advisable to station as custodians men who have deep cultural appreciation, not men who are interested only in
salaries. One good method is to appoint jobless cultural men of localities for this job. Would it be a good idea to permit a lottery sale for the maintenance of national treasures?
Chairman Eisaku Sato of the Democratic-Liberal Political Affairs Research Committee stated:
To fully protect national treasures with a limited budget, reinvestigation of national treasures is necessary. I would like to have national treasures selected carefully by this investigation, and the state protect them with responsibility. Although some quarters advocate state control of national treasures, I think it would be going too far.
Chairman Katakana of the Socialist Party:
Since the fundamental [sic] lies in improving the cultural knowledge of the people, we will strive to get as much cultural appropriations as possible at the Diet. At the same time, the Party will immediately deliberate on concrete problems such as the method of preservation, for prevention measures and probe of responsibility.
252The House ofCouncilors, The 7th Session of theNationalDiet,OFFICIAL GAZETTE EXTRA 9-10 (Apr.
27, 1950) (on file with author) [hereinafter The House of Councilors].
Education Minister Takahashi:
I am planning to dispatch officials directly from the Education Ministry to investigate whether or not national treasures of special importance are adequately preserved. A revised bill is to be presented at the next session of the Diet. Since the Finance Ministry's concern for national treasures has become greater, the problem of appropriation for national treasure preservation is expected to be settled favorably.253
On April 19, 1949, Gallagher, Fine Arts Advisor of A&M, sent a memorandum to the Chief of the Religion and Cultural Resources Division.254 He attached translations of the various drafts of bills that had been provided to him by members of the Education Committee to that memo. His note indicated that the draft of the proposed National Treasures Preservation Law had, in fact, been superseded by a draft of a bill that purported to be a new Cultural Goods Preservation Law. He continued to comment that the two drafts were similar but that the Committee had felt that theater arts and other fields should be included. Thus, they desired to give the initiative a new and more general title. He then opined, "there would seem to be no objection to this, provided a reasonable, common-sense attitude is maintained toward such materials.",255
A later undated memo from Plumer, Fine Arts Advisor, to the Chief of the Religion and Cultural Resources Division commented upon the proposed Cultural Properties Protection Law.256 In the memo he acknowledged agreement in principle with Gallagher that the Chief of the Section of A&M should approve the preliminary draft of the law. He also offered certain specific observations, including one that is very telling concerning the need to support individual rights in property. It reads:
In view of the strongly bureaucratic forces now at work in Japan and specifically in the highly centralized control envisioned by this law, it is recommended that the government's recognition of individual rights should be specified by article. Accordingly, to
253 Political Parties Reveal Measures for National Treasure Preservation (Mar. 1, 1949) (on file with
author).
'5' Memorandum from GHQ, SCAP, CI&E Section Fine Arts Advisor C.F. Gallagher, to Chief, Religions and Cultural Resources Division, Subject: Cultural Goods Preservation Law and Cultural Commission (Apr. 19, 1949) (on file with author).
2 Id.256 id.
Article 4 that calls for cooperation of the people toward attainment of the purposes of the law, it is held advisable to add, as Art 4 (item 2): "The Government shall respect the property rights of owners of registered cultural property. 257
An Inter-Division Memorandum, dated June 20, 1949, and again directed to the Chief, Religion and Cultural Resources Division by J. M. Plumer, Fine Arts Advisor was captioned "Report on Arts and Monuments:
Recommendations ofOutgoing Advisor in Fine Arts. ,,258 In the memo he made observations and offered suggestions on matters that include: the administration of museums; the reconstruction of Horyu-ji, calling it a grave and expensive matter; that the next advisor should visit the site as soon as practicable; that Japanese field examiners attached to A&M were of tremendous value; and that indigenous art scholars should continue to be encouraged. It also provided two comment sections on the various cultural property efforts. The first addressed the National Treasure and Important Art Object Laws. It noted that they:
should be brought up to date and if practical (I consider it so) merged. This suggestion is made as conservatively and strongly as possible-in view of recent attempts to load revisions of these laws with a number of schemes under excuse of "protection of cultural properties, tangible and intangible. ' 259
,
The second stated:
National Cultural Property Preservation Law (which failed to pass Diet this spring) on retrospect and after conversation with many Japanese professionally qualified to be interested in same, it appears a very fortunate thing it failed. Future attempts to pass this or a similar law should be strongly resisted ... .Behind Iwamura's plausible explanations and swiftly deft additions, there lay a real political power grab. This is the very thing that all previous senior Fine Arts Advisors have attempted to prevent. Particularly objectionable were the implications of government interference with private property (pressure for exhibitions, etc)
257 Memorandum From Fine Arts Advisor, J. M. Plumer, to Chief, Religions and Cultural Resources
Division, Subject: Cultural Properties Protection Law (Undated) (on file with author).25 Inter-Division Memorandum from J.M. Plumer, supranote 225.
259 id.
and of government interference with the crafts. It is felt that had
that law passed there would have been an entree for subversive
elements.26° (Emphasis in original.)
A bill to amend the legislation providing for the protection of cultural treasures was presented in 1949 to the fifth session of the Diet by the Education Committee of the House of Councilors (The Upper House). The session, however, closed without considering the bill and it was sent to the Lower House. The legislative action on this bill was then suspended. Its aim had been to give strong national protection to cultural objects. Each house then began the task of separately drafting successor bills intending to submit them for consideration at the next session. Sometime in October 1949, committees for
both Houses came to an understanding that the Upper Committee would draft a successor bill and incorporate therein the views of the Lower Committee. The following changes were made in the bill over the course of the several months from the date the first bill was prepared in June to the date of the final bill in November:
1. In addition to national treasures and important art and cultural properties, previously excluded categories of objects buried underground, historic sites, scenic spots and natural
monuments were included as protected cultural properties. (Articles 2, 56-65 and 68-82)
2.
The Technical Consultative Board, previously mentioned as affiliated with the Cultural Property Protection Committee, was given its own recognized stature. (Article 21)
3.
The Cultural Properties Protection Committee was given power to enforce surveys and research requests for national treasures and important cultural properties. (Articles 53-54 and 80-81)
4.
Owners of cultural properties would receive certain relief from income, inheritance and admittance taxes. (Articles 91-92)
There were several matters that had been present in the draft of the Lower House that were omitted. The omitted items included: (1) Annual monetary grants to private owners for preservation of important cultural properties; and
(2) Consultation between the CPPC and local fire chiefs so that proper measures could be taken to protected important cultural properties under the
260 id.
Fire Protection Law (Law 186 of 1948).261
On November 10, 1949, the Upper Committee completed the draft bill. It had been reasonably expected that the bill would be submitted to the Sixth Special Session of the Diet. However, its consideration was again carried over. The joint bill was finally taken up by the Seventh Session of the Diet in the House of Councilors on April 26, 1959.262 Committee Chair Yuzo Yamamoto presented the bill to the House. The bill was composed of 131 Articles and was claimed to be "without parallel in the world history., 263 The highlights of the bill, as described by Mr. Yamamoto were:
1. There were three basic categories of cultural properties
protected:
A. Tangible Cultural Properties including buildings, art
objects, ancient documents, folk custom data all of which have high historical or artistic value.
B. Intangible Cultural Properties including dramatic, musical and industrial arts having high historical or artistic value.
C. Historic sites, places of scenic beauty and natural monuments.
2.
The bill intended to unify the administration of cultural properties under an independent group called the Cultural Properties Protection Committee ("CPCC"). The CPPC would be provided a special advisory group called the Cultural Property Special Council. The National Museum was to be incorporated into the Council so that it might perform its own functions.
3.
The bill would provide for subsidies not only to shrines and temples, as had prior Laws, but would also give them to private individuals who possessed cultural properties. In addition, subsidies would be granted for the protection of intangible cultural assets, buried cultural properties, historic sites, places of scenic beauty and natural monuments.
4.
The bill was designed to impress upon owners of cultural properties that such are not only their private property but are also a valuable legacy belonging to all people. It made
26 Draft Commentary for the Latest Draft of the Cultural Property Protection Bill, translation by Mr. Takata (Dec. 14, 1949) (on file with author).
262House of Councilors, supra note 252, at 9.
263i.
owners liable for preservation as well as obligated them to exhibit the properties.264
In the course ofpresenting the bill, Yamamoto presented the reasons why it was introduced. He offered the following telling summary observations about the state of cultural property in Japan of the day:
Now I shall explain the reason for ... submission. Since the defeat in the war, the people speak much about the establishment of a "cultural nation." This is a very good idea. But the motto has not been acted up to .... In fact, our old cultural properties which were produced by our ancestors in ancient times, have little been attended to as they should be. No effective measures have been taken for their preservation. How can we hope to become a cultural nation by behaving ourselves in that way? Now we Japanese have surprisingly many cultural properties .... But since the beginning of the last war, little attention has been paid to their protection, repair or supervision with the result that those invaluable properties have begun to decay or to be destroyed. Some of them have burnt down or are on the verge of utter destruction. Nothing is more deplorable than such a situation. How can we apologize to our ancestors as well as our posterity if we should break or ruin our valuable inheritances. Nay it humiliates us in the eyes of foreign peoples, too. Therefore, the Government, the owners of those properties as well as people in general must cooperate with each other for the protection of important cultural properties .... To that end, it is necessary to make a law for establishing a proper culture administration
265
organ.
The Bill passed the House unanimously, and it was formally promulgated on May 30, 1950. It became operative effective on August 29, 1950, by Cabinet Order Number 276 of August 1950. Upon its effective date, certain prior laws, including the National Treasure Law of 1929 and the Law for the Preservation ofHistoric Sites, Places of Scenic Beauty and Natural Monuments of 1919, were abolished. In accord with Section 116, the Law concerning the Preservation of Important Objects ofArt of 1933 continued to have effect with
264 id.265 Id. at 9-10.
respect to items designated as included under the prior law up to the date of enforcement of the new Law. In accord with Section 117, prior designations under the 1919 Law were, under chosen circumstances, also deemed to be designations under the new Law.
While A&M did not get all it wanted, it had asserted considerable influence over the course of events leading to promulgation of the Law. 266 Its general mission to assure the protection of cultural property in Japan was accomplished. The Diet, in its concessions, included words virtually identical
to the recommendation of Plumer, as previously noted, which required that the government respect private ownership. The concession in Article 4(3) of the passed bill was the one that A&M considered most significant, reading "in execution of this Law, the Government and the local public bodies shall respect the ownership and other property rights of the persons concerned."
VI. CONCLUSION
While the United States remains one of the few developed countries that has failed to construct a comprehensive program for the protection of its own cultural properties, 267 it is evident that it has had significant influence in the world community in general, and over Japan during the last 150 years in particular, in safeguarding these treasures. It is ironic that during this same period, little has been accomplished in the United States on a domestic level to protect its own cultural heritage. With the exception of limited statutes directed at repatriation of select Native American artifacts,268 some general conservation provisions, 269 and the National Stolen Property Act,27° there has been little effort to construct an effective and comprehensive program for the protection of cultural treasures. 271 The United States remains one of the few developed countries that has failed even to attempt. Perhaps with a renewed
understanding of the importance of cultural property and a better awareness of
266 See BEASLEY, supra note 58, at 224 (discussing the dynamics in place in 1950 and following).
267See generally,LYNDEL V. PROTT & PATRICK J. O'KEEFE, HANDBOOK OF NATIONAL REGULATIONS CONCERNING THE EXPORT OF CULTURAL PROPERTY (1988); INTERNATIONAL REGULATIONS CONCERNING THE EXPORT OF CULTURAL PROPERTY: AN UPDATE (2000).26' Native American Graves Repatriation Act of 1990, 25 U.S.C. § 3001 (2002); Illegal Trafficking in Native American Human Remains and Cultural Item, 18 U.S.C. § 1170 (2002).269Archeological Resources Protection Act of 1979, 16 U.S.C. § 470aa (2002).
270National Stolen Property Act, 18 U.S.C. § 2314 (2002) (transportation of stolen goods); 18 U.S.C. §
2315 (salc or receipt of stolen goods).2 Some effort has been made to protect the cultural properties of other countries from entry into the
United States through passage of the Convention on Cultural Property Implementation Act of 1983,19 U.S.C. § 2601 (2002). See also Regulation ofImportation ofPre-Columbian Monumental and Architectural Sculpture or Murals, 19 U.S.C. § 2901 (1972).
the role that the United States and the West has played in the larger global community and in Japan, scholars and politicians can join forces with renewed vigor to address the domestic issues surrounding ethnographic treasures.
APPENDIX 1:272 Compilation of Various Cultural Property Protection Laws of Japan
1. GENERAL GOVERNMENTAL LAWS
1.
General Rules for Ministries: Imperial Edict # 122, 1893
2.
General Rules for the Minister of Education: Imperial Edict #279, 1898
3.
Rules Regarding Temporary Employees of the Minister of Education: Imperial Edict #293, 1920
4.
Rules Establishing Bureaus of the Minister of Education: Ministry of Education Instructions of 1913
5.
Rules Establishing Bureaus of the Ministry of Finance: Imperial Edict #327, 1924
6.
Pertinent Rules of the Government of Hokkaido: Imperial Edict #150, 1913
7.
Pertinent Rules for Local Officials: Imperial Edict #147, 1926
II. LAWS REGARDING PRESERVATION OF NATURAL TREASURES
1.
Preservation of National Treasures: Law #17, 1929
2.
Rules for Enforcement of Law Regarding Preservation ofNational Treasures: Imperial Edict #210, 1929
3.
Regulations for the Enforcement of Law Regarding Preservation ofNational Treasures: Min. of Ed. Regs. #37, 1915
4.
General Rules of the Society for the Preservation of National Treasures: Imperial Edict #211, 1915
5.
Rules for the Proceedings of the Society for the Preservation of National Treasures: Min. of Ed Regs., 1915
6.
Established Regulation of the Min. of Ed. on National Treasures:
a.
Reports on Religion, National Treasures, Historic Sites, Scenic Spots: #17, 1930
b.
Repair of National Treasures: #13, 1930
c.
Dispersing Funds for Preservation and Repair of National Treasures: #91, 1929
d.
Supply of Tiles for Repair of Protected Structures and National Treasures: #14, 1916
e.
Notes on Custody of Protected Structures and National
272 Report by Ministry of Education regarding Cultural Objects Preservation Laws (Feb. 1, 1946) (on file with author).
Treasures: #4, 1902
f.
Reports on Custody of Protected Structures and National Treasures, Theft, Loss: #14, 1914
g.
Reports on Theft and Loss of National Treasures
h.
Reports on Theft and Loss of National Treasures, Exhibited Without Government Order: #94, 1915
i.
Notice Boards on Protected Structures Specified by the Shrine and Temple Preservation Law: # 15, 1902
j.
Ministry of Home Affairs Instruction: #15, 1902 on application of National Treasures Preservation Law: #89, 1929
k.
Subsidy for Preservation of Old Shrines and Temples: #350, 1918
III. LAWS REGARDING PRESERVATION OF REGISTERED IMPORTANT ART
OBJECTS
1.
Law for Preservation of Important Art Objects: #43, 1933
2.
Regulations for Preservation of Such Art Objects: #10, 1933
3.
Regulations for the Committee for Investigation of Important Art Objects: #9, 1933
4.
Regulations for Proceedings of the Committee for Investigation of Important Art Objects: Min. of Ed. Regs., 1933
IV. LAWS REGARDING PRESERVATION OF HISTORIC SITES, SCENIC SPOTS AND
NATURAL HISTORY PRESERVES
1.
Law for Preservation of Historic Sites, Scenic Spots and Natural History Preserves: #44, 1919
2.
Enforcement of laws for Preservation of Historic Sites, Scenic Spots and Natural History Preserves: #499, 1919
3.
Regulations for Preservation of Historic Sites, Scenic Spots, Natural History Preserves: #27, 1919
4.
Regulations for the Investigation Committee of Historic Sites, Scenic Spots, Natural History Preserves: #397, 1936
5.
Regulations for proceedings of the Committee for the Investigation of Historic Sites, Scenic Spots, Natural History Preserves: Min. of Ed. Regs., 1936
6.
Classifications of Historic Sites, Scenic Spots, Natural History Preserves: #51, 1920
7.
Principal sites to be preserved in this classification: Min. ofHome Affairs Decision, 1920
8.
Certificates of members of the Committee for Investigation of Historic Sites, Scenic Spots, and Natural History Preserves: #209, 1921
9.
Items in the Records of Historic Sites, Scenic Spots, Natural History Preserves, Min. of Home Affairs Decision, 1920
10.
Established Regulation of the Ministry of Education on Historic Sites, Scenic Spots, and Natural History Preserves:
a.
Control of Matters Relating to Preservation of Historic Sites, Scenic Spots, Natural History Preserves, 1928
b.
Reports on preservation of Historic Sites, Scenic Spots, Natural History Preserves, 1922
c.
Employees stipulated in Art. II of the Law on Preservation of Historic Sites, Scenic Spots, Natural History Preserves, 1922
d.
Photographs of Historic Sites, Scenic Spots, Natural History Preserves: #48, 1922
e.
Use of National Parks: #91, 1931
f.
Administrators of Historic Sites, Scenic Spots, Natural History Spots: #29, 1937
g.
Institutions for Preservation of Historic Sites, Scenic Spots, Natural History Preserves: #7, 1925, #73, 1936, #7, 1936
h.
Selection of Natural History Preserves: #8, 1928
i.
Granting Medals to Japanese Dogs: #26, 1937
j.
Funds from Historic Sites, Scenic Spots, Natural History Preserves: #1, 1925
k.
Preservation Laws Applied to Imperial Estates: #5, 1924
1. Transfer of Control of Sites: #1, 1923
m.
National Properties Supervised by the Ministry of Home Affairs as Authorized by the Preservation Laws: #52, 1929
n.
National Properties Supervised by the Ministry of Education as Authorized by the Preservation Laws: #22, 1929
o.
Statement of Increase and Decrease of National Properties Authorized as Sites: #842, 1930
p.
Treatment of National Properties: #162, 1930
q.
Control of national property belonging to Universities, Colleges, Libraries: Min. of Ed. Regs., 1922
r.
Differences Between Public and Private Property Control: #99, 1922
V. MISCELLANEOUS LAWS REFERRING TO PRESERVATION
1. National Treasures
a. Preservation of Antiques and Ancient Goods, Cabinet Announcement, 1871
b. Preservation of Rituals of Shrines: #159, 1875
c. Control of Temple Compounds: #12, 1903
d. Application for Use of Such Compounds: #467, 1906
e. Regulations on Cutting Trees in Temple and Government Land: #390, 1903
f. Transfer of Temple Compounds: #401, 1912
g. Preservation of National Treasures: #92, 1929
h. Imperial Crest: #23, 1879
i. Accounts of Shrine Management: #54, 1926
j. Expenses of Investigating Committees: #13, 1921
2. Historic Sites, Scenic Spots, Natural History Preserves
a. Report of Discovery of Ancient Tombs: #59, 1874
b. Report on Discovery of Ancient Tombs on Private Property: #3, 1880
c. Archeological Finds as Materials for Study: #985, 1899
d. Archeological Finds Preserved by Prefectures: #221, 1901
e. -Do -#222, 1901
f. Liaison with Min. of Imperial Household on Excavation of Tombs for Anthropological Study: #410, 1901
g. Excavation of Mausolea: #17, 1901
h. Mausolea Excavated by Imperial Universities: #1339, 1902
i. Moving of Excavated Articles to Universities: #655, 1908
j. Handling of Excavated Articles by University Professors: #11, 1908
k. Excavation of Mausolea: #2653, 1913
1. Excavation of Mausolea by Universities: #127, 1913
m. Excavation of Mausolea and Archeological Finds: #2, 1916
n. Cost of transport of Archeological Finds: #67, 1920
o. Discovery and Excavation of Mausolea: #787, 1934
p. Construction of Cable Railways: #22, 1928
q. Cutting Trees in Compounds of Shrines and Temples:
#235, 1873
r. Construction of Monuments at Sites or Mausolea: #115, 1898
s. Shapes of Monuments Above Described: #18, 1900
t. Law for Advertisements: #70, 221, 1911
u. National Forest Laws: #85, 1899, #43, 1907
v. Town Planning Law: #36, 1919
w. Re-Adjustment of Rice Fields Law: #30, 1909
x. Laws and Regulations on Hunting: #32, 1918, #28, 1919
y. Maintenance and Repair of Roads: #15, 1921
z. Income from Trees on Sites: #116, 1900
3. Miscellaneous
a. Rules Regarding Catalogue of Shrines, Gods, Description, Type of Notices, Transfer, etc. of Shrines: #6, 1913
b. Regulations on City Buildings: #438, 1920
c. Law of Petition: #105, 1890273
273 Japanese Cultural Resources, Report No. 3 ofthe Civil Info. and Educ. Sec., Research and Info. Div. (Feb. 1, 1946) (Index of Rules for Administration ofPreservation) (on file with author).
APPENDIX II:1 4 Law for Preservation of Historic Sites, Scenic Spots and Natural History Preserves, Law No. 44 (1919)
Article 1
Those historic sites, scenic spots and natural history preserves to which the present law is to be applied shall be designated by the Minister of Home Affairs.
The prefectural governor may designate a site temporarily, in case it is necessary to do so prior to designation as mentioned above.
Article 2
Officials concerned may excavate, remove obstacles, etc. at the site or its surroundings, when it is necessary to the investigation of.the historic site, scenic spot, or natural history preserve.
Article 3
Any modification of the present conditions of historic sites, scenic spots and natural history preserves, or any act that may have an effect upon its preservation, must be sanctioned by the prefectural governor.
Article 4
The Minister of Home Affairs may, in connection with the preservation of historic sites, scenic spots, and natural history preserves, prohibit or limit certain acts, or establish necessary measures within a fixed area.
Any private person who has suffered damage by the preceding order, disposal or act under Article 2 shall receive reparation by the government as is provided by law.
Article 5
The Minister of Home Affairs may designate local communities to take charge of historic sites, scenic spots or natural history preserves.
274 Law for Preservation of Historic Sites, Scenic Spots and Natural History Preserves, Law No. 44 (1919)
(Japan) (on file with author).
Expenses incurred in the administration as stated in the preceding article shall fall on the community concerned. The National Treasury may grant a subsidy for part of the expenses.
Article 6
Any one who has acted against the provisions of Article 3, or against the order according to the provisions of Clause 1, Article 4, shall be subject to less than 6 months' imprisonment or detention or fined less than Y\100.
ANNEX
Items necessary for the enforcement of this law shall be decided by Imperial order.
The date of the enforcement of this law shall be decided by Imperial order.
Article 19 of the Law Regarding the Preservation of Ancient Temples and Shrines shall be abolished from the day of the enforcement of the present
law.
N.B.
(1) This law shall be enforced from 1 June 1919 by Imperial Edict,
No. 261.
(2) The Minister of Home Affairs herein stated shall now mean the
minister concerned. However, owing to the transfer of control of business
concerning preservation of historic sites, scenic spots and natural history preserves, the Minister of Education shall be the minister concerned from 1 December 1928.
APPENDIX II:27 The National Treasures Preservation Law of 1929
Article 1
Buildings and other highly-priced articles that have historical significance and artistic value shall be designated as national treasures by the responsible minister through the deliberations of the National Treasures
Preservation Association.
Article 2
When the responsible minister has designated a treasure according to the regulation of the previous article, he shall have the decision published in the official gazette and inform the owner of such an object of the decision.
Article 3
No national treasure shall be exported or shipped without the permission of the responsible minister.
Article 4
The responsible minister's permission shall be obtained when a national treasure is to be reconditioned, but not when maintenance repairs are to be made.
Article 5
When the responsible minister is to issue such permission as stated in the two previous articles, he shall consult with the National Treasures Preservation Association.
Article 6
When a national treasure changes ownership, or suffers damage or loss, the owner is ordered to report to the responsible minister.
275 The National Treasures Preservation Law (1929) (Japan) (on file with author).
Article 7
The owner of a national treasure has the duty of exhibiting his treasure (kokuho) in the Imperial Household Museum or in government or public museums or art gallery for the space of one year, upon command of the responsible ministers except when the article is to be used under a religious
celebration law or when it is necessary for official business. When the owner is dissatisfied with the above command, he may appeal the matter.
Article 8
The National Treasury shall allow subsidies to those who exhibit their national treasures according to the regulation of the previous article.
Article 9
The National Treasury shall compensate the owners ofnational treasures for ordinary damage or loss while on exhibition, under the regulation of Article 7, except in cases of inevitability. The amount of compensation shall be determined by the responsible minister according to the above regulation, but when the owner is dissatisfied he may appeal the case to an ordinary court.
Article 10
When a national treasure changes ownership while on exhibit, the new owner shall succeed to the old ownership rights and privileges under this law.
Article 11
The responsible minister shall abolish the designation of a national treasure through the consent ofthe National Treasures Preservation Association when it is necessary for public benefit or other special reason. The responsible
minister shall notify the public of such abolishment, according to the above regulation, through the official gazette and inform the owner of the matter.
Article 12
When the owner of a national treasure is a Shinto shrine or a Buddhist temple (including Buddhist hall), the shinto priest of the Shinto shrine (the chief priest of the national shrine, a temple priest ofthe professional temple or a
manager of village temple), or the superior of a Buddhist temple (a Buddhist-in-charge of a Buddhist hall) shall be the controller of the designated national treasure; or each may select a controller with the permission of the responsible minister.
Article 13
A national treasure that belongs to a Shinto shrine or a Buddhist temple cannot be disposed, mortgaged, or seized, except with permission of the responsible minister. When the responsible minister is to issue permission according to the above regulation, he shall consult with the National Treasures Preservation Association. Such actions taken without the said permission shall be nullified.
Article 14
The responsible minister, with the consent of the National Treasure Preservation Association, shall allow subsidies for maintenance repairs of a national treasure that belongs to a Shinto shrine or a Buddhist temple. When necessary, such subsidies may be given for the national treasures that belong to other than Shinto shrines or Buddhist temples, according to the above regulation.
Article 15
Subsidies shall be given according to the amounts estimated for maintenance repairs, but the surplus balance after exact expenses shall be returned.
Article 16
The amount of annual budget for the said subsidies or supplementary allowances from the National Treasury shall be from V150,000 to Y200,000. Provision may be made within the fixed budget for additional temporary subsidies or supplementary allowances, when necessary.
Article 17
Matters pertaining to the system and extent of rights of the National Treasures Preservation Association, besides this law, shall be determined by
Imperial ordinance.
Article 18
Matters pertaining to the control of national treasures that belong to Shinto shrines or Buddhist temples shall be determined by orders.
Article 19
Matters pertaining 'to the national treasures that belong to the Government shall be determined by special Imperial ordinance.
Article 20
When a national treasure is exported or shipped out of the country without the permission of the responsible minister, the violator shall be imprisoned no more than five years or fined no more than \Y
5 ,000.
Article 21
Anyone who damages, injures or hides a national treasure shall be
imprisoned no more than five years or fined no more than Y500. Any owner who damages, injures or hides his national treasure shall be imprisoned no more than two years or fined no more than Y200.
Article 22
When anyone reconditions a national treasure without permission, against the regulation of Article 4, he shall be fined no more than Y500.
Article 23
Anyone who does not report against the regulation ofArticle 6, shall be fined no more than Y500.
Article 24
When a national treasure on exhibit is damaged or lost through the negligence of the owner or of the controller of a national treasure that belongs to a Shinto shrine or Buddhist temple, the owner or the controller shall be fined no more than Y500.
Article 25
Regulation Articles 206 and 208 of the Noncontestable Procedures Law shall be applied for the procedures of fining those violating this law.
ADDITIONAL REGULATIONS
[1] The dates of enforcement of this law shall be determined by Imperial ordinance.
[2] The old Shrines and Temples Preservation Law shall be abolished.
[3] Specially protected buildings and articles that are qualified as national treasures under the old Shrines and Temples Preservation Law shall be defined as designated national treasures under this law. The preservation funds that were given under the old Shrines and Temples Preservation Law shall also be defined as the subsidies given under this law. (Imperial Ordinance No. 209 or 1929 shall be enforced from 1 July 1929).
276
APPENDIX IV: "Law for Preservation of Important Art Objects, Law No. 43 (1933)
Article 1
Anybody who wants to export or remove objects excluding national treasures which are considered important from the viewpoint ofhistory or fine arts, must have the sanction of the minister concerned. However, the same rule may not be applied to works done by living artists or which are less than fifty years old, or have been imported within a year.
Article 2
Those objects which require permission for their export or removal shall be designated by the minister concerned, announced in the official gazette, and such action shall be reported to their owner. Those who obtain ownership to such objects as a result of sale, exchange or gift after the notice of designation has been published, shall be presumed to have known that such objects are so designated.
Article 3
In case the minister concerned does not give such sanction to the object as stated in Article 1, he shall designate it as national treasure under Article 1 of the Law Regarding the Preservation of National Treasures within one year, or cancel the designation under the preceding article.
Article 4
Matters concerning authorization, cancellation, and report in the change in owner of the objects authorized by Article 2 shall be decided by Imperial order.
Article 5
Anybody who has exported or removed an object designated under Article 2 shall be subject to less than three years' penal servitude or impairment or fined
276 Law for Preservation of Important Art Objects, Law No. 43 (1993) (Japan) (on file with author).
less than Y1,000.ADDENDAThe law shall be in force from the day of its publication.
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