동아시아지역의 문화재 보호 및 불법거래방지에 관한 법적 고찰

Abstract

The prevention of the illicit trade in cultural objects has recently become a global issue. The illegal trade in cultural objects is now increasingly recognized as one of the most prevalent categories of international crime. As the seriousness of the problem is widely felt, international society is making a concerted effort to bring this problem under control through international cooperation. For instance, it has adopted a series of international treaties on the prevention of the traffic in stolen or illegally exported cultural objects such as the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and the 1995 UNIDROIT Convention on the International Return of Stolen or Illegally Exported Cultural Objects. Not only national governments but also various NGOs and other private-sector institutions and persons are participating in this concerted effort. In this paper, I have discussed the prevention of the illicit trade in cultural objects from an East Asian perspective. It is needless to say that the prevention of the illegal traffic in cultural objects in East Asia has much in common with that problem in other regions. In these problem areas common to East Asia and other regions, I have discussed the present state of those problems in East Asia. In addition to these common problems, I have tried to identify and discuss some of the problems which I believe are specific to the East Asian region, such as the massive transfer of Chinese and Korean cultural objects into Japan in the pre-1945 period, and venture a few proposals for the improvement of the present situation. This paper consists of six sections. The introduction (I) is followed by a brief overview of the historical background to the present debate on the protection of cultural heritage in East Asia (II). I have described the present state of the illicit trade in cultural objects by discussing some of the representative cases. In particular, I have discussed the Higasa case in some detail since a number of problems relating to the protection of cultural heritage in the region are compressed into this colourful story (III). In the next section, I have looked at some of the measures to be taken in international and domestic law for an effective prevention of the illicit trade in cultural objects (IV). I have also discussed measures to be taken in the non-normative field (V). By way of conclusion, I have argued that more attention should be paid to the complexity of cultural heritage-related issues and their inter-linkage, in particular, the danger of an instrumental use of cultural objects for the purpose of biased national historiography (VI).