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Editor's Note: Last year, two precious statues were stolen in Japan and smuggled into South Korea by two South Korean thieves of cultural property, and there is a hot debate over whether these statues should be returned to Japan or kept in South Korea. This case was brought to the South Korean court, and it was decided in February this year that the statues should not be returned to Japan. And the pro-Korean former chief editor of the Asahi Shimbun Wakamiya Yoshibumi commented in a newspaper column in April this year that "(this incident) is one causes that could embitter ROK-Japan relations." In this review, we will have an in-depth look at the 'plunder' of cultural property that took place hundreds of years ago, the recent 'stealing and smuggling' of cultural property, and debates on the recovery of ownership or right of possession of such cultural property from a legal perspective.

In October 2012, South Korean thieves of cultural property were caught smuggling into the country the two statues that they had stolen in Tsushima Island (對馬島) in Japan. One was a statue of Buddha from the Unified Silla period that was kept in the Kaijin (海神) Shrine, and the other was a statue of seated Bodhisattva from the Goryeo period that was kept in the Kannon (觀音寺) Temple. And both of the statues turn out to be extremely precious cultural objects 'made in Korea,' i.e. of Korean origin.
In December of the same year, the Japanese government made a request to the South Korean government through diplomatic channels for investigation and the return of the stolen statues. While the South Korean government was considering how to handle this issue, the Pusoksa Temple of the Korean Buddhist Jogye Order filed for an injunction against the South Korean government to stop it from transferring the possession of the statue of seated Bodhisattva. On February 26, 2013. the Daejeon District Court No. 21 Civil Division decided that "the South Korean government should not express its intention of returning the statue of seated Bodhisattva to Japan until it is confirmed by a lawsuit that the Kannon Temple of Japan had legitimately acquired this statue before it became the temple's possession, and the South Korean government should deliver the possession of the statue to the bailiff appointed by the Pusoksa Temple." In effect, this decision prevented the early return of the statues. Afterward, on March 3, the South Korean government stated that there had been a discussion with its Japanese counterpart on the return of the statues.

Three Views on What to Do with the Smuggled Statues

In South Korean society, there is a hot debate over whether or not these statues stolen in Japan and smuggled into South Korea should be returned to Japan. The public opinion is divided into three views: 1) both of the statues should be returned (Professor Chung Young-ho et. al); 2) neither of them should be returned (the Buddhist community and citizens advocating cultural sovereignty); and 3) the statue of Buddha should be returned because there is no evidence that Japan took it away from us, whereas the statue of seated Bodhisattva should not be returned (Dongguk University professor Mun Myung-dae, monk Hyumun et. al).

The first view is that 'both should be returned'; while it is true that the statues were made in Korea, they may have been sent over to Japan by legitimate means such as exchange, donation or gift (in other words, the acquisition of them was legitimate), whereas there is no evidence at all that Japan plundered or looted them. If that is the case, the statues belong to Japan, and the transfer of them to South Korea is equivalent to the illicit export from Japan by means of theft/stealing. Therefore, South Korea should return them to Japan under Articles 3 and 13 of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of 1970 (a.k.a. UNESCO Convention) which provide that state parties should be banned from the export or import of ownership of cultural property effected contrary to this convention, and they should return any cultural property that has been illicitly imported or exported. South Korea and Japan joined this convention in 1983 and in 2002, respectively. Japan is insisting that the statues, which were in its territory before they were illicitly imported to South Korea last October, should be returned in accordance with the UNESCO Convention.
The UNESCO-ICOM (International Council of Museums) Code of Ethics adopted in 1986 also have a similar provision, but this code is not legally binding. And the 'UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects' adopted in 1995, a stronger version of the UNESCO Convention, provides that cultural property may be recovered by compensation or other such means even if it was a bona fide acquisition. However, since neither South Korea nor Japan is a party to this convention, it doesn't apply to this case.

The second view is that 'neither of them should be returned'; since the statues were made in Korea and highly likely to have been plundered by Japan, neither of them should be returned. This view is also grounded on the relevant provision of the UNESCO Convention. The UNESCO Convention, as holders of this view argue, was designed to protect those who legitimately acquired or own cultural property, not to protect the current right of possession of cultural property that has been exported by illicit means of plunder or loot during war, armed conflict or colonial rule that took place a long time ago. If the statues in question were plundered or looted by Japan from their origin in Korea in the first place, there is no need to return them.
However, the UNESCO Convention specified its purpose to "protect cultural property against the dangers of theft, clandestine excavation, illicit export (refer to the preamble)" without specifically addressing the cases of plunder or loot committed during war or other armed conflicts or colonial rule. Therefore, if the South Korean government were not to return the two statues to Japan on the grounds above, they would have to prove that the two statues were plundered or looted by Japan. If they failed to do so, the South Korean government is likely to cause a backlash not only from Japan but also from the international community. In short, the two statues could be kept only at the cost of something greater like diplomatic friction between South Korea and Japan and adverse effects on efforts to recover Korean cultural property in Japan.

The Return of the Plundered Cultural Property Should Be Refused

The third view is a compromise between the first two. The prayer of wishes found inside the statue of seated Bodhisattva confirms that the statue was made in 1330 at the Seosan Pusoksa Temple in Korea. And the record of production also found inside the statue read: "it is pledged to be made and served forever as the master of the Seosan Pusoksa Temple" without any mention of "transfer to Kannon Temple in Tsushima Island." If the statue was produced by Buseoksa Temple with the intention of enshrining it in Kannon Temple in Tsushima Island, it is the principle that the reason for transfer should be stated in the record of production. The absence of any written evidence that Korea gave the statue to Japan and the partial damage to the head of the statue point to the possibility that the statue was plundered by Japan. In other words, it is hard to say that the statue was donated or transferred to Kanno Temple by legitimate means. Therefore, the South Korean government should consider refusing to return this statue to Japan on the grounds that Korea has original ownership.
As for the statue of Buddha, on the other hand, there is no conclusive evidence that supports that it was plundered or looted by Japan. As much as we wanted to keep it, we could just as well return this statue to Japan. A better option would be to return it first, and then have it donated or purchase it later through negotiation between the Korean and the Japanese temples. If we kept refusing to return it, we could be seen as insisting on keeping a stolen object or encouraging theft and stealing.

Whether the Statues Were Stolen and Future Efforts to Recover Cultural Property Should Be Taken into Consideration

According to the Cultural Heritage Administration of South Korea, as of February 2013, over 150,000 pieces of cultural property have been exported overseas, 43 percent of which, or 6,600 pieces, are in Japan. It is speculated that quite a number of Korean cultural objects are the ones that have been plundered or looted. This calls for our thorough preparations to recover them step by step. The South Korean government should investigate to find out exactly how the statues in question were transferred to Japan, and how they came into the possession of the Japanese temples. In addition, they should take measures necessary to confirm that the statues were stolen, review the Cultural Heritage Protection Act and related conventions, and confirm the case made by the Buddhist community, before they could make the final decision on the return of the statues. Required in the process, of course, is the wisdom to take into consideration various factors, including international law, diplomacy, and the possible influence on the future efforts to recover the Korean cultural objects in Japan.