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A type of "alternative dispute resolution" in which parties agree to be bound by the decision of an impartial arbiter in an attempt to resolve the matter without litigation. Arbitration can be both legally binding and non-binding.

Arbitration is distinct from mediation in that mediators attempt to find a compromise while arbiters are removed from the process of reaching a settlement.

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A type of "alternative dispute resolution" that involved the use of a conciliator: a 3rd party that attempts to repair a broken relationship between two disputing parties.

Unlike arbitration, conciliation has no legal standing and the conciliator does not offer an opinion. Unlike mediation, conciliation is primarily focused on mending a broken relationship between parties, perhaps in advance of mediation.

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Negotiations conducted between states or through the intervention of a state party or a state representative in negotiations. This may take the form of a state working towards its own claim or interests regarding the return of cultural property or aiding in the return request of one or more of its citizens. In some situations, the support of a state or state-to-state intervention is required as part of a return request.

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Adjudication is the resolution of a return dispute through a court ruling. "It implies a hearing by a court, after notice, of legal evidence on the factual issue(s) involved".

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A form of "Alternative Dispute Resolution" where a 3rd party helps to resolve a dispute using various negotiating techniques which emphasise dialogue and compromise. Mediators help negotiate a settlement and are seen as quicker, cheaper, and (at times) more conciliatory than the pathway through the courts.

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A blanket term for a number of activities which are aimed at resolving a dispute over a cultural object. For us, it will mean dialogue focused on resolving a return request without the use of a formal mediator, arbiter, or conciliator and without the intervention of a state. In other words: two parties sitting down at the table together.

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Catch-all for the other legal or extra-legal cultural property may be returned, including (for example) spontaneous return without the need for negotiation.

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Winkworth V. Christie Manson and Woods Ltd (1980)

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Winkworth V. Christie Manson and Woods Ltd (1980)

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Japanese Netsuke collection that was stolen in England, sold in Italy, and offered for sale again in England at auction. The English judge ruled that Italian law was applicable in this case and
that the Italian buyer, then, had good title to the netsuke. They were NOT returned. There is no record of any non-judicial negotiations or alternative dispute resolution attempts in this case.
See: ArThemis entry on the case

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In 2011, assistant Bishop to the Archbishop of Cyprus within the Greek Orthodox church watched an interview of Boy George, where he discovered the singer had an 18th century Cypriot icon of Jesus Christ hanging in his living room. After further investigation, the artifact was identified as stolen from the Church of St. Charalambos during the Turkish invasion of Cyprus in July and August 1974. The bishop requested the singer return the artifact. Without hesitation after a personal meeting in the form of a negotiation settlement, between the two parties, Boy George and the bishop orally agreed on the return of the icon.

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Boy George has returned a stolen Cypriot artefact that had been missing for almost 40 years. The singer said he was unaware that an icon of Jesus Christ which had hung in his living room for decades was looted from a church in Nicosia. Church officials noticed the portrait during a TV interview with Boy George, where it appeared in the background.

The Culture Club singer bought the artefact "with good faith" from a London art dealer in 1985. "[I] have looked after the icon for 26 years," he told BBC News. "[I'm] happy it is going back to its original rightful home."

The image was originally displayed at the Church of St Charalambos, in the Cypriot village of New Chorio-Kythrea. But during the Turkish invasion of 1974, thousands of religious artefacts - including this one - disappeared from the north of the island, allegedly sold on the black market. Cyprus is now partitioned between Turkish-occupied north and the independent republic, which controls the south.

Cypriot bishop Porfyrios of Neapolis said he felt "joy and gratitude" at the singer's return of the object, which he brought to the St Anagyre church in north London. Boy George "contributed to the efforts of the Church of Cyprus for the repatriation of its stolen spiritual treasures", the bishop told BBC Radio 4. Although he did not ask the star how much he paid for the icon, Boy George did not ask for any money in return.

"I have always been a friend of Cyprus," the singer said. "I look forward to seeing the icon on display in ... the Church of St Charalambos from where it was stolen."
Topics

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Boy George returns lost icon to Cyprus church

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Boy George has returned a stolen Cypriot artefact that had been missing for almost 40 years. The singer said he was unaware that an icon of Jesus Christ which had hung in his living room for decades was looted from a church in Nicosia.

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The restitution ceremony

DOWNLOAD AS PDF - CASE NOTE IN ENGLISH TELECHARGER LE PDF - AFFAIRE EN FRANCAIS
Citation: Anne Laure Bandle, Alessandro Chechi, Marc-André Renold, "Case 20 Herero and Nama Skulls - Namibia and Charité Universitätsmedizin Berlin," Platform ArThemis ( http://unige.ch/art-adr), Art-Law Centre, University of Geneva.
Immediately after proclaiming its independence, Namibia petitioned Germany to return several skulls of deceased members of Herero and Nama communities. The skulls had been brought to Germany after the mass killings committed by German authorities between 1904 and 1908 to quell the uprising against the colonial occupation. At the time of the restitution claim, the skulls were being held at the Charité Universitätsmedizin in Berlin. The Charité and German authorities agreed to conduct the necessary research on the remains and to return them to Namibia.
Colonialism

1904 - 1908: Herero and Nama people in the former German Southwest Africa colony (identifiable with the modernNamibia) were mercilessly "killed during their uprising against German colonial rule"[1]. The German repression, orchestrated by General Lothar von Trotha, lead to the killing of 80% of the Herero and 50% of the Nama people[2]. Their remains were brought to Germany for research purposes and stored in different scientific institutions in Berlin.

Until the 1990s: Charité Universitätsmedizin Berlin (hereafter "Charité"), a public university hospital, obtained several skulls including those at issue in the present case: eleven skulls from members of the Nama tribe and nine skulls from the Herero people[3]. Extensive research funded by the German Research Foundation was conducted on the human remains to identify their origins[4].

1990: Namibia achieved independence.

14 August 2004: At the commemoration ceremony for the genocide's 100th anniversary, the German Minister for Economic Cooperation and Development, Heidemarie Wieczorek-Zeul, presented her apologies on behalf of all Germans to the Herero and Nama people, acknowledged Germany's guilt, as well as moral, political, and historical responsibility[5]. However, the Minister did not mention legal responsibility, despite expressly stating that General von Trotha would have been accountable for crimes against humanity pursuant to current international criminal law[6].

October 2006: The governing party in Namibia, "South West Africa People's Organization" (SWAPO), invited Germany to enter into negotiations regarding reconciliation and compensation for the genocide[7].

2008: The matter became a political issue in Namibia following the broadcast of a documentary in Germany on the existence of Namibian skulls in the collections of German scientific institutions[8]. In October, representatives of the Nama and Herero tribes approached the Namibian government, petitioning the Government to reclaim the remains from Germany[9]. As a result, Namibia and Germany commenced discussions regarding the restitution of the remains[10]. To aid its effort, Namibia formed a delegation comprised of Government representatives from the National Heritage Council of Namibia[11] and Herero and Nama community members[12].

Since 2010: A research team of anthropologists at the Charité has been engaged in the study of the about 7,000 skulls the hospital possessed, including the remains of the Herero and Nama tribes.

30 September 2011:The 20 skulls were officially returned by the Charité to the Namibian delegation. An official ceremony was held in Namibia on 5 October 2011 to mark the repatriation of the skulls.

II. Dispute Resolution Process

Negotiation - Diplomatic Channel - Settlement agreement

The most important issues during the dispute were negotiated between the German Government and the Namibian delegation[13].

During negotiations, the tribal authorities asked the Charité to conduct research on the remains to obtain as much information as possible[14], which was necessary in order to adequately respond to the restitution claim. As a scientific institution, the Charité considered it its responsibility to administer extensive research on the remains to contribute to the understanding of the tribe's history[15]. Moreover, by agreeing to return the human remains, the Charité conceded its historical indifference ignoring the mistreatment of the Herero and Nama tribes[16]. The hospital's CEO, Karl Max Einhäupl, was quoted as saying that such a return would "express respect and contribute to the honorable remembrance of the victims"[17]. When the remains had been brought to Germany, they were not regarded as "human remains but as material with which to investigate and classify race"[18]. This shift in attitude shows that the Charité's standards regarding the conservation, research, and exhibition of human remains have considerably changed in the past decades.

The commemoration ceremony of 2004 was important in that the German State officially apologized to the Namibian tribes. However, Germany's position regarding the return of the 20 skulls was criticized for failing to explicitly acknowledge the legal responsibility of the German State [19]. In turn, the Charité expressly recognized the crimes committed against Herero and Nama tribes "in the name of a perverted concept of scientific progress"[20] and conveyed its apologies for them[21]. However, tensions grew during the repatriation ceremony, when the German Minister of State at the Federal Foreign Office, Cornelia Pieper, did not speak of apology but of reconciliation, and left out any reference to the atrocious circumstances in which the tribal people died[22]. Further troubles were provoked by the fact that no representative of the German Government signed the official declaration document prepared to seal the restitution. As a result, the Namibian Minister for National Affairs similarly refused to offer his signature[23]. Instead, the document was signed by the Charité's CEO and a representative of the Namibian Council of National Heritage[24].

In relation with the restitution of the 20 skulls from the Charité, the German Government refused to acknowledge any responsibility for the crimes committed against the indigenous communities during German colonial rule. Therefore, it therefore refrained from formulating any sort of compensation or formal apology, including defining the committed crimes as "genocide".

Three main explanations for Germany's position may be articulated. First, the crime of genocide did not exist in international law until the 1948 Convention on the Prevention and Punishment of Genocide. Therefore, the killings of 1904-1908 could not be retroactively qualified as such a crime[25], otherwise "there would be no end to the potential claims that could be made to remedy each genocide in history"[26]. Second, Germany may have intended to avoid comparisons linking its actions to those of the Nazi genocide from World War II, which led to the establishment of several compensation schemes. Despite this, the connection with the Holocaust has been made by scholars and the Herero leader, Mburumba Kerina[27]. Third, the German ambassador to Namibia explained during the 2004 memorial ceremony that the payment of compensation to one or two of these ethnic groups would "upset the policy of national reconciliation pursued by Namibia"[28]. Moreover, compensation to the Government of Namibia was already included in Germany's development aid[29].

Unconditional restitution

The Charité agreed to the unconditional restitution of the 20 skulls.

Furthermore, at the request of the indigenous people, the researchers compiled extensive documentation on their results, which was also handed over to Namibia[30].

Along with the restitution, the Charité expressed its apologies for the cruelties suffered by the indigenous communities.

Whether the outcome of this dispute was actually satisfactory for the Namibian indigenous communities remains questionable, especially considering Germany's reluctance to apologize and formally and expressly take legal responsibility for the genocide. Some critics argue that an effective settlement can only be achieved above any material aspects, in the form of redress and recognition of the caused harm[31]. Adhering to this approach, the Charité stepped in to act in place of what should have been the German Government's responsibility.

This case is the first known example of a restitution of human remains from Germany[32]. It is believed that the return of the 20 skulls is only the first of further restitutions that will follow the conclusion of the researches at the Charité[33]. Moreover, it has motivated other institutions in Germany to study the indigenous remains in their possession and consider restitution[34].

a. Bibliography

Bargueño, David. "Cash for Genocide? The Politics of Memory in the Herero Case for Reparations." Holocaust and Genocide Studies 26, no. 3 (Winter 2012): 394 - 424.

Kornes, Godwin. "Nation building, nationale Erinnerungskultur und die Politik der Toten in Namibia." In Beiträge zur 3. Kölner Afrikawissenschaftlichen Nachwuchstagung (KANT III), edited by Larissa Fuhrmann, Lara Buchmann, Monia Mersni, Nico Nassenstein, Christoph Vogel, Mona Weinle and Andrea Wolvers. Accessed February 5, 2013. http://www.uni-koeln.de/phil-fak/afrikanistik/kant/data/Kornes_KANT3.pdf.

Kößler, Reinhart. "Namibia, postkolonial ignoriert." Blätter für deutsche und internationale Politik 11 (2011), 37 - 40.

b. Media

Opoku, Kwame. "Return of Stolen Skulls by Germany to Namibia: Closure of a Horrible Chapter?" Modern Ghana News, November 21, 2011. Accessed February 5, 2013. http://www.modernghana.com/news/362016/1/return-of-stolen-skulls-by-germany-to-namibia-clos.html.

Küpper, Mechthild. "Eine Geste des Bedauerns." Frankfurter Allgemeine, October 1, 2011. Accessed February 5, 2013. http://www.faz.net/aktuell/gesellschaft/rueckgabe-einiger-schaedel-eine-geste-des-bedauerns-11447286.html.

Riexinger, Klaus. "Erbe des Rassenwahns." Der Sonntag, October 2, 2011, 4.

Charité Universitätsmedizin Berlin Press Release. "Universitätsmedizin Berlin honours the victims." September 30, 2011. Accessed February 5, 2013. http://www.charite.de/index.php?id=35&L=1&tx_list_pi1[mode]=6&tx_list_pi1[uid]=2893&cHash=ea0b0b935a5db6df745514e485954521.

Dpa. "Berliner Charité: Rückgabe von Kolonialzeit-Schädeln endet im Streit." Spiegel Online, September 30, 2011. Accessed February 5, 2013. http://www.spiegel.de/wissenschaft/mensch/berliner-charite-rueckgabe-von-kolonialzeit-schaedeln-endet-im-streit-a-789434.html.

Knight, David. "There was Injustice - Skulls of Colonial Victims Returned to Namibia." Spiegel Online, September 27, 2011. Accessed February 5, 2013. http://www.spiegel.de/international/germany/there-was-injustice-skulls-of-colonial-victims-returned-to-namibia-a-788601.html.

National Heritage Council. "About the National Heritage Council." Accessed February 5, 2013. http://www.nhc-nam.org/ab_aboutus.php.

[1] Charité Universitätsmedizin Berlin Press Release, "Universitätsmedizin Berlin honours the victims," September 30, 2009, accessed February 5, 2013, http://www.charite.de/index.php?id=35&L=1&tx_list_pi1[mode]=6&tx_list_pi1[uid]=2893&cHash=ea0b0b935a5db6df745514e485954521.

[2] See Reinhart Kö ßler, " Namibia, postkolonial ignoriert," Blätter für deutsche und internationale Politik 11 (2011), 37.

[3] Ibid.; David Knight, "There was Injustice - Skulls of Colonial Victims Returned to Namibia," Spiegel Online, September 27, 2012, accessed February 5, 2013, http://www.spiegel.de/international/germany/there-was-injustice-skulls-of-colonial-victims-returned-to-namibia-a-788601.html.

[4] The research brought the following results: "skulls that had been stored in Charité mainly belonged to adults between 20 and 40 years of age. Among them were four women, 15 men and one little boy aged three or four" (Charité Universitätsmedizin Berlin Press Release, "Universitätsmedizin Berlin honours the victims.").

[5] David Bargueño, "Cash for Genocide? The Politics of Memory in the Herero Case for Reparations," Holocaust and Genocide Studies 26, no. 3 (Winter 2012): 397.

[6] See Kwame Opoku, "Return of Stolen Skulls by Germany to Namibia: Closure of a Horrible Chapter?" Modern Ghana News (November 21, 2011), accessed February 5, 2013, http://www.modernghana.com/news/362016/1/return-of-stolen-skulls-by-germany-to-namibia-clos.html.

[7] Reinhart Kö ßler, " Namibia, postkolonial ignoriert, " 39.

[8] See Godwin Kornes, "Nation building, nationale Erinnerungskultur und die Politik der Toten in Namibia," in Beiträge zur 3. Kölner Afrikawissenschaftlichen Nachwuchstagung (KANT III), ed. Larissa Fuhrmann et al., accessed February 5, 2013, http://www.uni-koeln.de/phil-fak/afrikanistik/kant/data/Kornes_KANT3.pdf, 17-18.

[9] Ibid., 18; Reinhart Kö ßler, " Namibia, postkolonial ignoriert," 39; Mechthild Küpper, "Eine Geste des Bedauerns," Frankfurter Allgemeine (October 1, 2011), accessed February 5, 2013, http://www.faz.net/aktuell/gesellschaft/rueckgabe-einiger-schaedel-eine-geste-des-bedauerns-11447286.html.

[10] See Kornes, "Nation building," 18.

[11] The National Heritage Council is a Namibian administrative body responsible for the protection of Namibia's natural and cultural heritage, see "About the National Heritage Council," National Heritage Council, accessed February 5, 2013, http://www.nhc-nam.org/ab_aboutus.php.

[12] Ibid.

[13] See Reinhart Kö ßler, " Namibia, postkolonial ignoriert, " 39.

[14] See David Knight, "There was Injustice."

[15] See Charité Universitätsmedizin Berlin Press Release, "Universitätsmedizin Berlin honours the victims."

[16] Ibid.

[17] Charité Universitätsmedizin Berlin Press Release, "Universitätsmedizin Berlin honours the victims."; see also Küpper, "Eine Geste des Bedauerns."

[18] David Knight, "There was Injustice."

[19] See Opoku, "Return of Stolen Skulls by Germany to Namibia: Closure of a Horrible Chapter?"

[20] Charité Universitätsmedizin Berlin Press Release, "Universitätsmedizin Berlin honours the victims."

[21] See Reinhart Kö ßler, " Namibia, postkolonial ignoriert, " 38; Opoku, "Return of Stolen Skulls by Germany to Namibia: Closure of a Horrible Chapter?".

[22] See Küpper, "Eine Geste des Bedauerns."

[23] See Dpa, "Berliner Charité: Rückgabe von Kolonialzeit-Schädeln endet im Streit. "

[24] See Reinhart Kö ßler, " Namibia, postkolonial ignoriert," 38; Dpa, "Berliner Charité: Rückgabe von Kolonialzeit-Schädeln endet im Streit. "

[25] See Opoku, "Return of Stolen Skulls by Germany to Namibia: Closure of a Horrible Chapter?"; Bargueño, "Cash for Genocide? 397-398.

[26] Bargueño, "Cash for Genocide? 398 (quoting the scholar Allan D. Cooper).

[27] Ibid., 402.

[28] Opoku, "Return of Stolen Skulls by Germany to Namibia: Closure of a Horrible Chapter?"

[29] Ibid.

[30] See Charité Universitätsmedizin Berlin Press Release, "Universitätsmedizin Berlin honours the victims."

[31] See Opoku, "Return of Stolen Skulls by Germany to Namibia: Closure of a Horrible Chapter?"

[32] See Charité Universitätsmedizin Berlin Press Release, "Universitätsmedizin Berlin honours the victims."

[33] See Knight, "There was injustice."

[34] See Klaus Riexinger, "Erbe des Rassenwahns," Der Sonntag (October 2, 2011), 4; Knight, "There was injustice."

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20 Herero and Nama Skulls - Namibia and Charité Universitätsmedizin Berlin, Germany

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Immediately after proclaiming its independence, Namibia petitioned Germany to return several skulls of deceased members of Herero and Nama communities. The skulls had been brought to Germany after the mass killings committed by German authorities between 1904 and 1908 to quell the uprising against the colonial occupation.

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This is a very interesting case to read: On July 28, 2014, the Eighth Circuit Court of Appeals denied the request of the United States Government to take further legal action regarding the St. Louis Art Museum’s ownership of the 3200 year old Egyptian Ka Nefer Nefer funerary mask. The U.S. Government wanted to seize and repatriate the mask to Egypt, but the Court held that the museum could keep the mask because the U.S. Government’s amended complaint was not submitted on time, nor did it show that the mask was ever stolen.

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DOWNLOAD AS PDF
Citation: Lauren Bursey, Ece Velioglu Yildizci, Marc-André Renold, "Case United States v. Mask of Ka Nefer Nefer" Platform ArThemis (http://unige.ch/art-adr), Art-Law Centre, University of Geneva.
On July 28, 2014, the Eighth Circuit Court of Appeals denied the request of the United States Government to take further legal action regarding the St. Louis Art Museum's ownership of the 3200 year old Egyptian Ka Nefer Nefer funerary mask. The U.S. Government wanted to seize and repatriate the mask to Egypt, but the Court held that the museum could keep the mask because the U.S. Government's amended complaint was not submitted on time, nor did it show that the mask was ever stolen.
Post 1970 restitution claims

1952: The funerary mask of Ka Nefer Nefer an Egyptian noblewoman (the Mask) was excavated by Egyptian archaeologist Mohamed Yakaria and catalogued in Egypt.[1]

1953: The Mask was registered as Egyptian property and placed in a storage facility at Saqqara.[2]

1966: The Mask was sent to Cairo Museum[3] in box number fifty-four.[4]

1973: The Mask was discovered missing during inventory.[5]

1983: Egypt passed patrimony law, Egyptian Law on the Protection of Antiquities, Law 117, which asserts Egyptian public ownership of antiquities and restricts private possession or ownership of cultural property.[6]

1998: St. Louis Art Museum (SLAM) purchased the Mask from Phoenix Ancient Art, a New York international art dealer based in Switzerland[7] for $499,000, after the museum's due diligence turned up nothing suspicious.[8]

2006: Egypt requested that SLAM return the Mask to them.[9]

2011: United States (U.S.) government filed a complaint for the forfeiture of all rights, title, and interest,[10] relying exclusively on 19 U.S.C. § 1595a., stating that the Mask was "stolen, smuggled, or clandestinely imported into the United States 'contrary to law'".[11] The government also claimed that the Mask was stolen before it was brought into the country, contrary to the Tariff Act of 1930,[12] and filed a motion based on the National Stolen Property Act,[13] which allows the US government to prosecute on behalf of a foreign government and defend their national ownership law.[14]

2012: The United States District Court for the Eastern District of Missouri (District Court) found that there was not enough evidence to support the U.S. government's claim that the Mask had been stolen. The U.S. government filed a motion for the court to reconsider this dismissal of the case, and revealed new information that it claimed would support an amended complaint.[15] The motion was denied. The U.S. government appealed to the Eighth Circuit Court of Appeals (Court of Appeals), which has appellate jurisdiction over district courts in the state of Missouri, among others.

2013: Parties attempted negotiations, but they ultimately failed.

2014: Court of Appeals affirms the District Court's procedural ruling, and the SLAM keeps the Mask.

Judicial claim - Judicial decision - Negotiation

Egypt, contacted SLAM to ask for the Mask back in accordance with its patrimonial law, but was unsuccessful.

The U.S. government judicially intervened on Egypt's behalf, since an initial negotiation process had failed.[16] Negotiation is usually the first step in these cases in an effort to avoid litigation, which is very costly. The U.S. government intervened by filing a forfeiture motion with the District Court in Missouri on behalf of the Egyptian government to defend Egypt's national patrimony laws.

When the case was dismissed by the District Court in 2012, the parties tried to settle the dispute out of court, but the negotiations failed again.[17] Despite the good faith attempts to reach an amicable resolution, the U.S. no longer felt that a non-judicial resolution would be likely.[18] At the negotiations, the U.S., the SLAM, and Egypt were represented.[19]

Finally, the question of the Mask's return and the SLAM's legal ownership was settled by a judicial decision of the Court of Appeals.

Ownership - Criminal offence (theft) - Illicit importation - Procedural Issue

Egypt believed that the Mask was stolen and illegally removed from Egypt, because the mask was missing from its storage box in Cairo.[20]

SLAM believed that it had rightful ownership to the Mask, since it had done adequate research. SLAM's research showed that the Mask was part of the Kaloterna private collection during the 1960s, until it was purchased in Switzerland by Croatian collector Zuzi Jelinek, before it was sold to Phoenix Ancient Art in 1995.[21] The museum saw no link between the 'illicit antiquities market' and the Mask. SLAM also claimed that the statute of limitations for seizure had passed:[22] the statute of limitations is five years in the United States.[23]

Concerning the claim on stolen property, SLAM responded to the 2011 complaint with a motion to dismiss, asserting that the Mask had entered the U.S. prior to the passage of Egypt's patrimony law and thus was not stolen from the Egyptian government and that the facts alleged in the complaint were too vague to support a conclusion that it had been 'stolen' in the traditional sense. Despite the existence of inventory records, the District Court found that the U.S. government's complaint failed "to state sufficiently detailed facts to support a reasonable belief that the government will be able to meet its burden of proof at trial."[24] Indeed, the complaint did not provide a factual statement of theft, smuggling, or clandestine importation, but only that the Mask was found to be "missing" from Egypt.[25] Essentially, correlation does not equal causation. SLAM also reasoned that the case was untimely filed under 19 U.S.C. § 162, and that the U.S. government's action should be barred by laches.[26]

The District Court in 2012 found that the U.S. government's complaint did not provide a "factual statement of theft, smuggling, or clandestine importation," but only stated that the Mask was missing as of 1973.[27] The U.S. government failed to provide evidence that the Mask was missing because it was stolen and then smuggled out of the country, and thus was making an unfounded legal conclusion.[28] The District Court relied upon Supplemental Rule E (2)(a), which requires that the Government set forth its claims in the complaint "with such particularity that the defendant or claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading." Supplemental Rule G (2)(f) requires that the Government "state sufficiently detailed facts to support a reasonable belief that the government will be able to meet its burden of proof at trial."[29]

Following the initial 2012 decision, SLAM remained steadfast by repeating in its briefs that the case had been dismissed, against the U.S. government's continual attempts to reopen the case with new evidence.[30] Rather than contravening the procedural question of the dismissal, the U.S. government addressed only the meritorious aspects of the case. The SLAM urged the District Court to consider only the procedural question in issuing its decision.

Following this decision, the U.S. government applied to the Court of Appeals to review the dismissal of the case by the District Court. The Court of Appeals found that the proposed amended complaint was not only "too late, it was also too little, because it still did not show that the mask was ever stolen."[31] The Court of Appeals held that the District Court was not obliged to invite the U.S. government to amend its complaint before granting complainant's motion to dismiss, and the District Court was within its discretion in denying the U.S. government's post-dismissal motion for leave to file an amended complaint.[32]

Request denied

Ultimately, by allowing the District Court's dismissal of the U.S. government's forfeiture request, the Court of Appeals prevented the U.S. government from seizing the Mask and repatriating it to Egypt, instead allowing the SLAM to retain the Mask.

Egypt has said that it will not abandon its efforts to repatriate the mask.[33] In a press release, Minister of Antiquities Mohamed Ibrahim said that he will "resort to the private sector in the United States to put pressure on the St. Louis Art Museum according to the agreements signed in this regard."[34] Given the long legal battle that it has just gone through, it is unlikely that SLAM will simply heed calls for it to return the Mask to Egypt.

There is broadly publicized pillaging throughout the Middle East, as will often occur during and as a result of political uprisings and regional wars. When the Mask was stolen, fighting was occurring between Israel and Egypt, Jordan, Palestine Liberation Organization and their allies, in what is now called the War of Attrition, lasting from 1967-1970.[35]

To avoid the potential purchase of black market items such as the Mask, museums should consider publicizing new purchases. Failure to publicize will result in the object being hidden from those who could identify them and possibly call for their restitution.[36] In 2008, the American Association of Art Museum Directors, of which the SLAM is a member, adopted for the first time guidelines for the acquisition of archaeological and ancient art, which requires museums to publish their acquisitions in print or electronic form, to make "this information readily available to all interested parties."[37]

It is noteworthy that in December 2005, the Museum Security Network had notified the FBI's Art Theft Program that they believed SLAM to be in possession of "an Egyptian mask stolen circa 15 years ago from depositories of a museum in Saqqara, Egypt."[38] However, no branch of the U.S. government made an attempt to investigate or seize the antiquity until 2011, more than 10 years later.

The National Stolen Property Act (NSPA) allows the U.S. government to prosecute on behalf of a foreign government and defend their national ownership law.[39] The NSPA was previously considered in the landmark case of U.S. v. Schultz (2003), where art dealer Frederick Schultz was convicted of importing and selling looted Egyptian antiquities.[40] In the Schultz case, the U.S. court upheld Egypt's patrimony law, which would have been the most efficient move for the court to take here, but which it chose not to. The Court in Schultz found that an object was considered "stolen" within the meaning of NSPA if it was taken in violation of patrimony law.[41] In the case of the Mask, the Court did not even consider Egypt's patrimony law, but looked only at the pleading requirements stated in the Federal Supplemental Rules.

The Court of Appeals characterized the government's efforts at forfeiture as "an attempt to expand the government's forfeiture powers at the likely expense of museums and other good faith purchasers in the international marketplace for ancient artifacts." Indeed, the Court's pro-museum characterization of the appeal is troubling, because it whitewashes over the responsibilities that good-faith purchasers have to research their acquisitions prior to purchase and to ensure beyond a doubt that their acquisitions were not looted.

a. Bibliography

Amineddoleh, Leila. "Protecting Cultural Heritage by Strictly Scrutinizing Museum Acquisitions." Fordham Intellectual Property, Media and Entertainment Law Journal, 24 (2014): 729-781.

Flescher, Sharon, and Mary Morabito Rosewater. "Mummy Mask Must Go Says ICE." International Foundation for Art Research (IFAR) Journal, 12.4 (2011): 15-16.

Gidley, Ann-Margaret, and Sharon Flescher. "SLAM Mummy Mask Can Rest in Peace in the Museum - For Now." International Foundation for Art Research (IFAR) Journal, 15.2 (2014): 12-14.

b. Court decisions

United States v. Mask of Ka-Nefer-Nefer, No. 4:11CV504 HEA, 2012 WL 1094658, at *1 (E.D. Mo. Mar. 31, 2012) aff'd, 752 F.3d 737 (8th Cir. 2014) and aff'd, 752 F.3d 737 (8th Cir. 2014).

United States v. Mask of Ka Nefer Nefer, 752 F.3d 737, (8th Cir. 2014).

United States v. Schultz, 333 F.3d 393 (2d. Cir. 2003).

c. Documents

"New Report on Acquisition of Archaeological Materials and Ancient Art Issued by Association of Art Museum Directors." Association of Art Museum Directors, June 4, 2008.

d. Media

Selleck, Angela. "Case Review: US v. Mask of Ka-Nefer-Nefer (8th Cir.)." Center for Art Law, August 10, 2014. Accessed June 2, 2015. http://itsartlaw.com/2014/08/10/case-review-us-v-mask-of-ka-nefer-nefer-8th-cir/.

St. Hilaire, Ricardo A. "Ka Nefer Nefer Forfeiture Case: SLAM Appellate Brief Strongly Criticizes Government." Cultural Heritage Lawyer Rick St. Hilaire, August 6, 2013, Accessed June 3, 2015. http://culturalheritagelawyer.blogspot.ch/2013/08/ka-nefer-nefer-forfeiture-case-slam.html.

St. Hilaire, Ricardo A. "Failed Negotiations Put Ka Nefer Nefer Forfeiture Case Back on the Docket." Cultural Heritage Lawyer Rick St. Hilaire, April 17, 2013. Accessed June 4, 2015, http://www.museum-security.org/2013/04/cultural-heritage-lawyer-rick-st-hilaire-failed-negotiations-put-ka-nefer-nefer-forfeiture-case-back-on-the-docket/.

St. Hilaire, Ricardo A. "Ka Nefer Nefer Settlement Terms to be Discussed." Cultural Heritage Lawyer Rick St. Hilaire, February 13, 2013. Accessed June 4, 2015. http://culturalheritagelawyer.blogspot.ch/2013/02/ka-nefer-nefer-settlement-terms-to-be.html.

Mann, Jennifer. "Government Sues to Seize St. Louis Museum's Mummy Mask." St. Louis Today, March 17, 2011. Accessed June 4, 2015. http://www.stltoday.com/news/local/metro/government-sues-to-seize-st-louis-museum-s-mummy-mask/article_98d72244-9976-5b8a-a73d-5c211c6a771b.html.

[1] Ann-Margaret Gidley and Sharon Flescher, "SLAM Mummy Mask Can Rest in Peace in the Museum - For Now," International Foundation for Art Research (IFAR) Journal, 15.2 (2014): 13.

[2] Selleck, "Case Review : US v. Mask of Ka-Nefer-Nefer (8th Cir.)," Center for Art Law, August 10, 2014, accessed June 2, 2015, http://itsartlaw.com/2014/08/10/case-review-us-v-mask-of-ka-nefer-nefer-8th-cir/.

[4] United States v. Mask of Ka-Nefer-Nefer, No. 4:11CV504 HEA, 2012 WL 1094658, at *1 (E.D. Mo. Mar. 31, 2012) aff'd, 752 F.3d 737 (8th Cir. 2014) and aff'd, 752 F.3d 737 (8th Cir. 2014).

[5] Ibid. Gidley and Flescher, "SLAM Mummy Mask Can Rest in Peace in the Museum - For Now."

[6] Sharon Flescher and Mary Morabito Rosewater, "Mummy Mask Must Go Says ICE," International Foundation for Art Research (IFAR) Journal, 12.4 (2011): 16.

[7] Ibid.

[8] Gidley and Flescher, "SLAM Mummy Mask Can Rest in Peace in the Museum - For Now."

[9] Flescher and Rosewater, "Mummy Mask Must Go Says ICE," 15.

[10] United States v. Mask of Ka-Nefer-Nefer, at *1.

[11] Flescher and Rosewater, "Mummy Mask Must Go Says ICE," 16.

[12] See 19 U.S. Code Chapter 4.

[13] See 18 U.S. Code Sections 2314 and 2315.

[14] Selleck, "Case Review: US v. Mask of Ka-Nefer-Nefer (8th Cir.)."

[15] Ricardo A. St. Hilaire,"Ka Nefer Nefer Forfeiture Case: SLAM Appellate Brief Strongly Criticizes Government," Cultural Heritage Lawyer Rick St. Hilaire, August 6, 2013, accessed June 3, 2015, http://culturalheritagelawyer.blogspot.ch/2013/08/ka-nefer-nefer-forfeiture-case-slam.html.

[16] Ricardo A. St. Hilaire, "Failed Negotiations Put Ka Nefer Nefer Forfeiture Case Back on the Docket," Cultural Heritage Lawyer Rick St. Hilaire, April 17, 2013, accessed June 4, 2015, http://www.museum-security.org/2013/04/cultural-heritage-lawyer-rick-st-hilaire-failed-negotiations-put-ka-nefer-nefer-forfeiture-case-back-on-the-docket/.

[17] Selleck, "Case Review: US v. Mask of Ka-Nefer-Nefer (8th Cir.)."

[18] Ricardo A. St. Hilaire,"Failed Negotiations Put Ka Nefer Nefer Forfeiture Case Back on the Docket.

[19] Ricardo A. St. Hilaire,"Ka Nefer Nefer Settlement Terms to be Discussed," Cultural Heritage Lawyer Rick St. Hilaire, February 13, 2013, accessed June 4, 2015, http://culturalheritagelawyer.blogspot.ch/2013/02/ka-nefer-nefer-settlement-terms-to-be.html.

[20] Selleck, "Case Review: US v. Mask of Ka-Nefer-Nefer (8th Cir.)."

[21] Jennifer Mann,"Government Sues to Seize St. Louis Museum's Mummy Mask," St. Louis Today, March 17, 2011, accessed June 4, 2014, http://www.stltoday.com/news/local/metro/government-sues-to-seize-st-louis-museum-s-mummy-mask/article_98d72244-9976-5b8a-a73d-5c211c6a771b.html.

[22] United States v. Mask of Ka-Nefer-Nefer, at *1.

[23] Flescher, and Rosewater, "Mummy Mask Must Go Says ICE."

[24] United States v. Mask of Ka-Nefer-Nefer at *2.

[25] Ibid. at *3.

[26] Ibid. at *1.

[27] United States v. Mask of Ka-Nefer-Nefer, at *3.

[28] Ibid.

[29] Ibid. at *1.

[30] Ibid.

[31] Gidley and Flescher,"SLAM Mummy Mask Can Rest in Peace in the Museum - For Now," 13.

[32] United States v. Mask of Ka Nefer Nefer, 752 F.3d 737, (8th Cir. 2014).

[33] Ibid.

[34] Ibid.

[35] Leila Amineddoleh, "Protecting Cultural Heritage by Strictly Scrutinizing Museum Acquisitions," Fordham Intellectual Property, Media and Entertainment Law Journal, 24 (2014) : 775.

[36] Ibid., 776.

[37] "New Report on Acquisition of Archaeological Materials and Ancient Art Issued by Association of Art Museum Directors," Association of Art Museum Directors, June 4, 2008

[38] Flescher and Rosewater, "Mummy Mask Must Go Says ICE," 16.

[39] Selleck, "Case Review: US v. Mask of Ka-Nefer-Nefer (8th Cir.)." ; 18 U.S.C.A. § 2314.

[40] Selleck, "Case Review: US v. Mask of Ka-Nefer-Nefer (8th Cir.)."

[41] United States v. Schultz, 333 F.3d 393 (2d. Cir. 2003).

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Ka Nefer Nefer Mask - United States v. Mask of Ka Nefer Nefer

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On July 28, 2014, the Eighth Circuit Court of Appeals denied the request of the United States Government to take further legal action regarding the St. Louis Art Museum's ownership of the 3200 year old Egyptian Ka Nefer Nefer funerary mask.

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This statue of a man was stolen from a village in Cameroon in 1966. While on loan to Dartmouth College from the Furman Gallery, a scholar identified it as stolen and notified officials in Cameroon. Restitution claims by the Cameroonian government were initially rejected by the gallery. However, in the face of growing pressure from the State Department, institutions, and individuals, Warren Robbins of the Museum of African Art in Washington stepped in as an ad-hoc negotiator. A number of private individuals offered to purchase the statue and then return it, to which the Gallery agreed. The statue was subsequently returned to Cameroon in 1973.

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Sarah Baartman was an enslaved Khoisa woman brought from South Africa to Britain in 1810. Displayed as a living exhibition in a freak show in both the UK and France, the remainder of her life was booth deeply dehumanizing and deeply tragic. She eventually died in 1815 of either tuberculosis or syphilis and was dissected, preserved, cast out of plaster, and displayed. After a failed arbitration attempt in 1996, there was an official request for the return of her remains in 2000 by the South African Ambassador. French Senator, Nicholas About, introduced a bill to French parliament to allow the remains to be deaccessioned and returned. Her body was returned to South Africa in 2002, and she was buried in a traditional Khosian ceremony. In yet another tragic twist, her grave was defaced in 2015.

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Private collector Benjamin Johnson was sued by the government of Peru to return 89 Moche objects. These had been illegally excavated from Sipan, and smuggled out of Peru in the 1980s.

Peru were unsuccessful - largely because it could not be determined that the objects were indeed from Peru, or that they had been excavated/ left the country prior to the enactment of Peru's cultural property legislation. The items remained with Johnson.

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Odyssey Marine Exploration Inc. v. Unidentified Shipwrecked Vessel

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Odyssey Marine Exploration Inc. v. Unidentified Shipwrecked Vessel

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The Mercedes sank on its way from Peru to Spain with a shipment of gold and silver coins (present day value at $500 million). Odyssey discovered the wreck and filed for (and was awarded) a salvage award claim in the United States. Spain, upon learning of the wreck, filed a counterclaim for ownership, as did Peru. Title was eventually given to Spain because the ship belonged to the State at the time of sinking.

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This case has elements of adjudication and negotiation (see second post). The Maori panels were sold to George Ortiz in breach of New Zealand law. Whilst in the initial trial, the panels were to be returned. The Court of Appeals and House of Lords overturned this ruling. The key issues being that 1) New Zealand never actually took possession of the panels and therefore their own laws couldn't be applied and 2) could an English court enforce foreign legal provisions.
To me, this highlights one of the main challenges to this type of resolution. That laws are not water tight, nor always enforcable in an international context.

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DOWNLOAD AS PDF
Citation: Elizabeth Fraccaro, Alessandro Chechi, Marc-André Renold, "Case Maori Panels - New Zealand and Ortiz Heirs", Platform ArThemis ( http://unige.ch/art-adr), Art-Law Centre, University of Geneva, November 2018.
In 1972, five rare Maori wooden panels were discovered in a swamp in New Zealand's North Island. Shortly after the discovery, the panels were illegally exported out of the country by an antiquities dealer and then bought by Swiss collector George Ortiz. In 1978, the panels were offered for sale by Sotheby's London. Having traced the panels, the Attorney-General of New Zealand brought an action in the United Kingdom seeking inter alia their repatriation. Following the case's failure, New Zealand pursued the return of the panels through alternative means. It was only in 2014 - after George Ortiz's death - that New Zealand obtained the return of the Maori panels by virtue of an agreement with the heirs of Ortiz.
Post 1970 restitution claims

1807-1842: In the midst of a series of battles fought amongst various Maori tribes, the Ngā Puhi and Te Āti Awa won the battle of Te Motu Nui, in the North Island, against the Waikato. Fearing vengeance, the Te Āti Awa fled south. Like many other Maori tribes during this turbulent time, the Te Āti Awa hid their most precious belongings (including five elaborately carved panels that once lined the walls of a pātaka)[1] in a swamp near Te Motu Nui, near Waitara in the province of Taranaki in the North Island. For unknown reasons, nobody returned to recover these panels.[2]

1972: Manukonga, a Maori man, discovered the five carved panels. He did not contact any authority about his discovery, and instead hid them within his own home.

1973: Manukonga reached out to antiquities dealer Lance Entwistle. Having recognized the panels as some of the finest carving that ever existed and taking advantage of Manukonga's ignorance, Entwistle bought them for $6,000 NZD and subsequently exported them to New York. The panels were sold to Swiss collector George Ortiz for $65,000 USD.[3]

4 October 1977: Ortiz's five-year-old daughter Graziella was kidnapped. The kidnappers held her for $2,000,000 USD ransom.

June 1978: Ortiz consigned 234 pieces of his art and antiquities collection to Sotheby's in London to recover the money he lost in paying Graziella's ransom. The collection was auctioned under the title "The George Ortiz Collection of Primitive Works of Art". Included in that auction were the five Maori panels, valued at £300,000.[4] Following the publication of the auction catalogue, the Attorney-General of New Zealand issued a writ declaring that the five panels belonged to New Zealand, and sought an interim injunction to prevent their sale and ensure their return. Pending judgment, the Maori panels were withdrawn from the sale and returned to Ortiz.[5]

1982-1984: The Court of Appeal and House of Lords rejected New Zealand's claims.

8 October 2013: George Ortiz died at his home in Geneva, Switzerland.

March 2014: Representatives of the New Zealand Government and of Te Papa Museum (the national museum of New Zealand) reached an agreement with the heirs of George Ortiz providing for the return of the panels.[6]

July 2014: The panels returned to New Zealand and were placed in temporary storage in the Te Papa Museum.[7]

20 March 2015: The panels were formally returned to the Te Āti Awa in Taranaki.[8]

Judicial claim - Judicial decision - Negotiation - Settlement agreement

Having traced the five Maori panels in Sotheby's auction catalogue, the Attorney-General of New Zealand brought an action in the United Kingdom seeking an injunction restraining the sale of the panels, a declaration that they were the property of the New Zealand Government by virtue of the 1962 Historic Articles Act (hereinafter "1962 Act"), and an order for their return to New Zealand.

While the trial court found in favour of the plaintiff, the Court of Appeal and House of Lords rejected New Zealand's claims.

Following the case's failure, New Zealand had to pursue return of the Maori panels through alternative means. However, the Government's multiple requests to Ortiz to negotiate the return of the panels were unsuccessful.

Upon Ortiz's death in 2013, representatives of the New Zealand Government and of Te Papa Museum travelled to Geneva to speak with Ortiz's heirs about returning the panels. The heirs were willing to negotiate and an agreement was eventually reached in 2014.[9]

Choice of law - Enforcement of foreign law - Illicit exportation

The panels - a rare example of Maori wood carving that were regarded as national "historic articles" under the law of New Zealand - had been exported from New Zealand in 1973 by Lance Entwistle in violation of the 1962 Act. The panels were sold to Swiss collector George Ortiz. Entwistle told Ortiz that, although the panels had been exported without a permit, he was their legal owner and was allowed to sell them. He also provided falsified provenance documents. As part of the sale, Ortiz agreed to not show the panels to New Zealand archaeologists or any third parties for a period of two years.[10]

In 1978, the New Zealand Government brought a case in the United Kingdom relying on the 1962 Act and the Customs Act of 1966. The former made it unlawful for any person to remove a national "historic article" from New Zealand without the Government's express permission. It further provided that "[a]n historic article knowingly exported or attempted to be exported in breach of this Act shall be forfeited to Her Majesty".[11] On the other hand, the Customs Act of 1966 provided that no goods could be seized "except within two years after the cause of forfeiture has arisen", and that goods "may be seized as forfeited wherever found within the territorial limits of New Zealand".[12] In other words, New Zealand argued that, as a Commonwealth country, the 1962 Act and the Customs Act of 1966 indicated that from the moment of illegal exportation the panels became property of the Crown. Accordingly, New Zealand contended that Her Majesty was legally entitled to seek recovery of the panels no matter where in the world they were (including outside of Commonwealth countries). The Government hoped that once Her Majesty recovered the panels, she would then return the panels to New Zealand or appropriate Maori group.[13]

The trial court upheld the claimant's case: Staughton J. held that title had passed automatically to New Zealand upon illegal export and that an English court would recognize such ownership rights in accordance with English public policy.[14] The judgment was appealed.

The Court of Appeal reversed[15] the decision of the trial court by looking at two issues: whether, on the facts alleged, the claimant had acquired title under New Zealand law; and, if so, whether the foreign legal provisions could be enforced by an English court. On the first issue the Court held that the New Zealand Government had not acquired title on the Maori panels given that forfeiture under the 1962 Act was not automatic, as it could only occur if the objects were actually seized at customs before they left the country. Consequently, on the second issue the Court decided that the claim for the return of the panels should fail on the grounds that the 1962 Act could not be enforced in the United Kingdom. In particular, Lord Denning, of the Court of Appeal (concurring that the 1962 Act did not provide for the automatic forfeiture of the panels by virtue of the export), held that, ruling otherwise, the 1962 Act would "infringe the rule of international law which says that no country can legislate so as to affect the rights of property when that property is situated beyond the limits of its own territory [...]".[16] Furthermore, Lord Denning stated that, by virtue of international law, no State had sovereignty beyond its own frontiers and, hence, an English court should not entertain a suit brought by a foreign sovereign to enforce its penal, revenue laws or "other public laws": "if any country should have legislation prohibiting the export of works of art, and providing for the automatic forfeiture of them to the state should they be exported, then that falls into the category of 'public laws' which will not be enforced by the courts of the country to which it is exported, or any other country, because it is an act done in the exercise of sovereign authority which will not be enforced outside its own territory".[17] He therefore explained that the category "other public laws" had to be understood to include the legislation prohibiting the export of works of art. New Zealand appealed this decision.

The House of Lords affirmed the Appellate Court's decision.[18] In particular, it held that the action failed on the grounds that New Zealand had not been able to establish its entitlement to or ownership of the carvings: on a correct interpretation of the 1962 Act, forfeiture was not automatic, but could take place only once the object in question had been actually seized, which it had not. In other words, the House of Lords stated that the 1962 Act did not affect the transfer of property in the panels from Entwistle to New Zealand upon Entwistle attempting to export the panels unlawfully. The House of Lords did not dwell on the question of whether the 1962 Act should be enforced on grounds that it was a foreign or public law.

Conditional restitution - Request denied - Repurchase - Sale

After George Ortiz's death in 2013, his heirs were willing to negotiate with New Zealand and representatives of the Te Papa Museum for the reason that their father had wished to return the panels to their country of origin. However, they did not intend to gift the panels.[19] Eventually, the parties agreed on the sale of the panels, which were bought by the New Zealand Government for $4,5 million NZD in 2014.

Upon the panels return to New Zealand in early 2014, ownership was given to the Te Āti Awa. The community decided to place the panels in the Puke Ariki Museum in 2015 for safekeeping and display. Today they are set on a frame reflecting the shape of a pātaka, and set at the height that the original storehouse would have stood. The frame rotates slowly, allowing visitors a 360 degree view of the structure and allowing them to appreciate the panels from the exact angle they were meant to be seen from.

This case is a great example of courts looking to foreign jurisdictions to determine (national) ownership of cultural objects. Ambiguity as to whether national legislation vests ownership rights in the claimant State has led many courts to find in favor of possessors (defendants) rather than the State (plaintiff). In this specific case, English courts established the principle that foreign export rules ("public laws") cannot be enforced outside the jurisdiction of the exporting State, even when exportation occurred in breach of such rules.

The illicit trade in cultural objects has been the subject of increasing concern since the conclusion of the Ortiz case. In particular, various legislative measures have been adopted at the national and international level.[20] All in all, these instruments have been designed to promote international cooperation in preventing and fighting the illicit movement of cultural property. Moreover, a number of cases demonstrate that the principle of the non-enforceability of foreign laws established by the Court of Appeal in Ortiz is no longer good law, provided that the claimant State can prove that a legislative declaration of national ownership was in force at the time of the export.[21] In effect, if at the time the objects were removed from the country of origin a national law was in place vesting ownership of such property in the State, "exportation constitutes a sufficient act of conversion to be deemed a theft".[22]

Regarding the solution of this case, selling cultural heritage back to the victims of that theft is problematic on three fronts. First, it promulgates the idea that everything - even cultural heritage - has a price and a selling point. For the people who are victims of cultural heritage theft, the objects are worth much more than money. Second, such a solution is only available to those countries and peoples with the financial resources to engage in the art market. Finally, and most importantly, this is an inherently unfair solution more akin to ransom than to remedy. Requiring the nation from whom cultural heritage has been stolen to pay for it to be returned is akin to requiring a person to pay the thief for their watch back; it is contrary to Western paradigms of criminal law, theft, and remedy, and continues to disadvantage victims of cultural property theft and delegitimize the harm caused by colonization and war.

a. Court decisions

Attorney General of New Zealand v. Ortiz, [1982] 3 QB 432, rev'd [1983] All ER 432, add'd [1983] 2 All ER 93, add'd [1983] AC 1.

Government of the Islamic Republic of Iran v. The Barakat Galleries Ltd. [2007] EWCA Civ. 1374.

United States v. McClain 545 F.2d 988 (5th Cir. 1977).

United States v. Schultz, 178 F.Supp. 2d445 (S.D.N.Y. 3 January 2002), aff'd, 333 F.3d 393 (2nd Cir. (NY) 10 June 2003).

b. Legislation

Historic Articles Act of 1962 (New Zealand).

Customs Act of 1966 (New Zealand).

UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (adopted 14 November 1970).

UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (adopted 24 June 1995).

Directive 2014/60 of the European Parliament and of the Council on the return of cultural objects unlawfully removed from the territory of a Member State (adopted 15 May 2014).

c. Documents

Alessandro Chechi, Raphael Contel, Marc-André Renold, "Case Jiroft Collection - Iran v. The Barakat Galleries Ltd.," Platform ArThemis (http://unige.ch/art-adr), Art-Law Centre, University of Geneva.

d. Media

Finlayson, Christopher. "Motonui Panels Returned to New Zealand," National Government of New Zealand, July 4, 2014, accessed July 27, 2017. https://www.national.org.nz/news/news/media-releases/detail/2014/07/04/motunui-panels-returned-to-new-zealand.

Fleming, Hannah. "Push for Funds to Restore Ancient Epa," Stuff, May 17, 2012, accessed July 26, 2017. http://www.stuff.co.nz/taranaki-daily-news/news/6936469/Push-for-funds-to-restore-ancient-epa.

Hauptfuherer, Fred. "Jorge Ortiz Has His Kidnapped Daughter but Is Heartsick about Her Trauma and His Lost Art," People, July 17, 1978, Accessed July 16, 2017. http://www.people.com/people/archive/article/0,,20071298,00.html.

Harvey, Helen. "Motonui Panels Returned to Taranaki," Taranaki Daily News, March 20, 2015, accessed July 25, 2017. http://www.stuff.co.nz/taranaki-daily-news/news/67462225/motunui-panels-returned-to-taranaki.

Ministry for Arts, Culture, and Heritage. "The Motonui Panels: Returned to New Zealand," Media Release, Friends of Te Papa, July 4, 2014, accessed July 25, 2017. https://www.friendsoftepapa.org.nz/article/motunui-panels-returned-new-zealand/.

"Motonui Epa," Puke Ariki Museum, 2015. http://pukeariki.com/Exhibitions/Motunui-Epa.

"Motonui Panels Returned to New Zealand," Manatū Taonga, Ministry for Culture & Heritage, July 23, 2015, accessed July 27, 2017. http://www.mch.govt.nz/mi/news-events/ministers-releases/motunui-panels-returned-new-zealand.

Yates, Donna. "Ransoms and Repatriations: the Maori Motonui Panels," Anonymous Swiss Collector, July 5, 2014, accessed July 27, 2017. http://www.anonymousswisscollector.com/2014/07/ransoms-and-repatriations-the-return-of-the-carved-maori-motunui-panels.html.

Yates, Donna. "The Motonui Panels: Wait for Return," accessed August 12, 2017. https://s3.amazonaws.com/uploads.knightlab.com/storymapjs/e5d0e630ebd20e93c14d7c56367467fb/kidnapping-and-return-of-the-motunui-panels/index.html.

[1] A pātaka is a stilted wooden storehouse that was extremely important to communities. See Yates, "Ransoms and Repatriations".

[2] Yates, "The Motonui Panels".

[3] Attorney-General of New Zealand v. Ortiz [1982] 3 W.L.R. 570, 575-576. See also Finlayson, "Motonui Panels Returned", and Fleming, "Push for Funds to Restore Ancient Epa".

[4] Yates, "Ransoms and Repatriations". See also Yates, "The Motonui Panels".

[5] The sale of the other items in the collection brought Ortiz $2,9 million USD. Having recouped his loss from Graziella's ransom, Ortiz decided not to sell the panels. Hauptfuherer, "Jorge Ortiz Has His Kidnapped Daughter".

[6] Finlayson, "Motonui Panels Returned". See also Harvey, "Motonui Panels Returned to Taranaki".

[7] Ministry for Arts, Culture, and Heritage, "The Motonui Panels: Returned to New Zealand".

[8] Yates, "The Motonui Panels".

[9] Finlayson, "Motonui Panels Returned". See also Harvey, "Motonui Panels Returned to Taranaki".

[10] Attorney-General of New Zealand v. Ortiz [1982] 3 W.L.R. 570, 575-76, 580-82, 585. See also Finlayson, "Motonui Panels Returned".

[11] Section 12(2).

[12] Sections 275(4) and 276.

[13] Attorney-General of New Zealand v. Ortiz [1982] W.L.R. 570, 575-576, 580-582, 585.

[14] Attorney-General of New Zealand v. Ortiz (1982) Queen's Bench Division 349, 1 July 1981.

[15] Attorney-General of New Zealand v. Ortiz [1982] 3 W.L.R. 570 Court of Appeal 21 May 1982.

[18] Attorney-General of New Zealand v. Ortiz [1984] A.C. 1; [1983] 2 W.L.R. 809; 21 April 1983.

[19] Finlayson, "Motonui Panels Returned".

[20] Many States have ratified (and thus adopted domestic measures to implement) the following instruments: the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property adopted in 1970 by the United Nations Educational, Scientific, and Cultural Organization (UNESCO); the Convention on Stolen or Illegally Exported Cultural Objects adopted in 1995 by the International Institute for the Unification of Private Law (UNIDROIT); and the Directive 2014/60 of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State. Likewise, many bilateral agreements have been concluded by major art-importing countries, such as Switzerland (see at: https://www.bak.admin.ch/bak/en/home/cultural-heritage/transfer-of-cultural-property/bilateral-agreements.html) and the United States (see at: https://theantiquitiescoalition.org/problems-and-solutions/bilateral-agreements/).

[21] See United States v. McClain (545 F.2d 988 (5th Cir. 1977)); United States v. Schultz, 178 F.Supp. 2d445 (S.D.N.Y. 3 January 2002), aff'd, 333 F.3d 393 (2nd Cir. (NY) 10 June 2003); and Government of the Islamic Republic of Iran v. The Barakat Galleries Ltd. [2007] EWCA Civ. 1374. On the latter case see Alessandro Chechi, Raphael Contel, Marc-André Renold, "Case Jiroft Collection - Iran v. The Barakat Galleries Ltd.," Platform ArThemis (http://unige.ch/art-adr), Art-Law Centre, University of Geneva.

[22] United States v. McClain 545 F.2d 988, 1003 (5th Cir. 1977).

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Maori Panels - New Zealand and Ortiz Heirs

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In 1972, five rare Maori wooden panels were discovered in a swamp in New Zealand's North Island. Shortly after the discovery, the panels were illegally exported out of the country by an antiquities dealer and then bought by Swiss collector George Ortiz.

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(continued from Adjudication). This case was finally settled, 35 years later, after the death of George Ortiz. New Zealand negotiated with his heirs and eventually agreed to buy the panels back for $4,5 million NZD. They were then returned to the Te Āti Awa and are now on display in the Puke Ariki Museum.

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Citation: Elizabeth Fraccaro, Alessandro Chechi, Marc-André Renold, "Case Maori Panels - New Zealand and Ortiz Heirs", Platform ArThemis ( http://unige.ch/art-adr), Art-Law Centre, University of Geneva, November 2018.
In 1972, five rare Maori wooden panels were discovered in a swamp in New Zealand's North Island. Shortly after the discovery, the panels were illegally exported out of the country by an antiquities dealer and then bought by Swiss collector George Ortiz. In 1978, the panels were offered for sale by Sotheby's London. Having traced the panels, the Attorney-General of New Zealand brought an action in the United Kingdom seeking inter alia their repatriation. Following the case's failure, New Zealand pursued the return of the panels through alternative means. It was only in 2014 - after George Ortiz's death - that New Zealand obtained the return of the Maori panels by virtue of an agreement with the heirs of Ortiz.
Post 1970 restitution claims

1807-1842: In the midst of a series of battles fought amongst various Maori tribes, the Ngā Puhi and Te Āti Awa won the battle of Te Motu Nui, in the North Island, against the Waikato. Fearing vengeance, the Te Āti Awa fled south. Like many other Maori tribes during this turbulent time, the Te Āti Awa hid their most precious belongings (including five elaborately carved panels that once lined the walls of a pātaka)[1] in a swamp near Te Motu Nui, near Waitara in the province of Taranaki in the North Island. For unknown reasons, nobody returned to recover these panels.[2]

1972: Manukonga, a Maori man, discovered the five carved panels. He did not contact any authority about his discovery, and instead hid them within his own home.

1973: Manukonga reached out to antiquities dealer Lance Entwistle. Having recognized the panels as some of the finest carving that ever existed and taking advantage of Manukonga's ignorance, Entwistle bought them for $6,000 NZD and subsequently exported them to New York. The panels were sold to Swiss collector George Ortiz for $65,000 USD.[3]

4 October 1977: Ortiz's five-year-old daughter Graziella was kidnapped. The kidnappers held her for $2,000,000 USD ransom.

June 1978: Ortiz consigned 234 pieces of his art and antiquities collection to Sotheby's in London to recover the money he lost in paying Graziella's ransom. The collection was auctioned under the title "The George Ortiz Collection of Primitive Works of Art". Included in that auction were the five Maori panels, valued at £300,000.[4] Following the publication of the auction catalogue, the Attorney-General of New Zealand issued a writ declaring that the five panels belonged to New Zealand, and sought an interim injunction to prevent their sale and ensure their return. Pending judgment, the Maori panels were withdrawn from the sale and returned to Ortiz.[5]

1982-1984: The Court of Appeal and House of Lords rejected New Zealand's claims.

8 October 2013: George Ortiz died at his home in Geneva, Switzerland.

March 2014: Representatives of the New Zealand Government and of Te Papa Museum (the national museum of New Zealand) reached an agreement with the heirs of George Ortiz providing for the return of the panels.[6]

July 2014: The panels returned to New Zealand and were placed in temporary storage in the Te Papa Museum.[7]

20 March 2015: The panels were formally returned to the Te Āti Awa in Taranaki.[8]

Judicial claim - Judicial decision - Negotiation - Settlement agreement

Having traced the five Maori panels in Sotheby's auction catalogue, the Attorney-General of New Zealand brought an action in the United Kingdom seeking an injunction restraining the sale of the panels, a declaration that they were the property of the New Zealand Government by virtue of the 1962 Historic Articles Act (hereinafter "1962 Act"), and an order for their return to New Zealand.

While the trial court found in favour of the plaintiff, the Court of Appeal and House of Lords rejected New Zealand's claims.

Following the case's failure, New Zealand had to pursue return of the Maori panels through alternative means. However, the Government's multiple requests to Ortiz to negotiate the return of the panels were unsuccessful.

Upon Ortiz's death in 2013, representatives of the New Zealand Government and of Te Papa Museum travelled to Geneva to speak with Ortiz's heirs about returning the panels. The heirs were willing to negotiate and an agreement was eventually reached in 2014.[9]

Choice of law - Enforcement of foreign law - Illicit exportation

The panels - a rare example of Maori wood carving that were regarded as national "historic articles" under the law of New Zealand - had been exported from New Zealand in 1973 by Lance Entwistle in violation of the 1962 Act. The panels were sold to Swiss collector George Ortiz. Entwistle told Ortiz that, although the panels had been exported without a permit, he was their legal owner and was allowed to sell them. He also provided falsified provenance documents. As part of the sale, Ortiz agreed to not show the panels to New Zealand archaeologists or any third parties for a period of two years.[10]

In 1978, the New Zealand Government brought a case in the United Kingdom relying on the 1962 Act and the Customs Act of 1966. The former made it unlawful for any person to remove a national "historic article" from New Zealand without the Government's express permission. It further provided that "[a]n historic article knowingly exported or attempted to be exported in breach of this Act shall be forfeited to Her Majesty".[11] On the other hand, the Customs Act of 1966 provided that no goods could be seized "except within two years after the cause of forfeiture has arisen", and that goods "may be seized as forfeited wherever found within the territorial limits of New Zealand".[12] In other words, New Zealand argued that, as a Commonwealth country, the 1962 Act and the Customs Act of 1966 indicated that from the moment of illegal exportation the panels became property of the Crown. Accordingly, New Zealand contended that Her Majesty was legally entitled to seek recovery of the panels no matter where in the world they were (including outside of Commonwealth countries). The Government hoped that once Her Majesty recovered the panels, she would then return the panels to New Zealand or appropriate Maori group.[13]

The trial court upheld the claimant's case: Staughton J. held that title had passed automatically to New Zealand upon illegal export and that an English court would recognize such ownership rights in accordance with English public policy.[14] The judgment was appealed.

The Court of Appeal reversed[15] the decision of the trial court by looking at two issues: whether, on the facts alleged, the claimant had acquired title under New Zealand law; and, if so, whether the foreign legal provisions could be enforced by an English court. On the first issue the Court held that the New Zealand Government had not acquired title on the Maori panels given that forfeiture under the 1962 Act was not automatic, as it could only occur if the objects were actually seized at customs before they left the country. Consequently, on the second issue the Court decided that the claim for the return of the panels should fail on the grounds that the 1962 Act could not be enforced in the United Kingdom. In particular, Lord Denning, of the Court of Appeal (concurring that the 1962 Act did not provide for the automatic forfeiture of the panels by virtue of the export), held that, ruling otherwise, the 1962 Act would "infringe the rule of international law which says that no country can legislate so as to affect the rights of property when that property is situated beyond the limits of its own territory [...]".[16] Furthermore, Lord Denning stated that, by virtue of international law, no State had sovereignty beyond its own frontiers and, hence, an English court should not entertain a suit brought by a foreign sovereign to enforce its penal, revenue laws or "other public laws": "if any country should have legislation prohibiting the export of works of art, and providing for the automatic forfeiture of them to the state should they be exported, then that falls into the category of 'public laws' which will not be enforced by the courts of the country to which it is exported, or any other country, because it is an act done in the exercise of sovereign authority which will not be enforced outside its own territory".[17] He therefore explained that the category "other public laws" had to be understood to include the legislation prohibiting the export of works of art. New Zealand appealed this decision.

The House of Lords affirmed the Appellate Court's decision.[18] In particular, it held that the action failed on the grounds that New Zealand had not been able to establish its entitlement to or ownership of the carvings: on a correct interpretation of the 1962 Act, forfeiture was not automatic, but could take place only once the object in question had been actually seized, which it had not. In other words, the House of Lords stated that the 1962 Act did not affect the transfer of property in the panels from Entwistle to New Zealand upon Entwistle attempting to export the panels unlawfully. The House of Lords did not dwell on the question of whether the 1962 Act should be enforced on grounds that it was a foreign or public law.

Conditional restitution - Request denied - Repurchase - Sale

After George Ortiz's death in 2013, his heirs were willing to negotiate with New Zealand and representatives of the Te Papa Museum for the reason that their father had wished to return the panels to their country of origin. However, they did not intend to gift the panels.[19] Eventually, the parties agreed on the sale of the panels, which were bought by the New Zealand Government for $4,5 million NZD in 2014.

Upon the panels return to New Zealand in early 2014, ownership was given to the Te Āti Awa. The community decided to place the panels in the Puke Ariki Museum in 2015 for safekeeping and display. Today they are set on a frame reflecting the shape of a pātaka, and set at the height that the original storehouse would have stood. The frame rotates slowly, allowing visitors a 360 degree view of the structure and allowing them to appreciate the panels from the exact angle they were meant to be seen from.

This case is a great example of courts looking to foreign jurisdictions to determine (national) ownership of cultural objects. Ambiguity as to whether national legislation vests ownership rights in the claimant State has led many courts to find in favor of possessors (defendants) rather than the State (plaintiff). In this specific case, English courts established the principle that foreign export rules ("public laws") cannot be enforced outside the jurisdiction of the exporting State, even when exportation occurred in breach of such rules.

The illicit trade in cultural objects has been the subject of increasing concern since the conclusion of the Ortiz case. In particular, various legislative measures have been adopted at the national and international level.[20] All in all, these instruments have been designed to promote international cooperation in preventing and fighting the illicit movement of cultural property. Moreover, a number of cases demonstrate that the principle of the non-enforceability of foreign laws established by the Court of Appeal in Ortiz is no longer good law, provided that the claimant State can prove that a legislative declaration of national ownership was in force at the time of the export.[21] In effect, if at the time the objects were removed from the country of origin a national law was in place vesting ownership of such property in the State, "exportation constitutes a sufficient act of conversion to be deemed a theft".[22]

Regarding the solution of this case, selling cultural heritage back to the victims of that theft is problematic on three fronts. First, it promulgates the idea that everything - even cultural heritage - has a price and a selling point. For the people who are victims of cultural heritage theft, the objects are worth much more than money. Second, such a solution is only available to those countries and peoples with the financial resources to engage in the art market. Finally, and most importantly, this is an inherently unfair solution more akin to ransom than to remedy. Requiring the nation from whom cultural heritage has been stolen to pay for it to be returned is akin to requiring a person to pay the thief for their watch back; it is contrary to Western paradigms of criminal law, theft, and remedy, and continues to disadvantage victims of cultural property theft and delegitimize the harm caused by colonization and war.

a. Court decisions

Attorney General of New Zealand v. Ortiz, [1982] 3 QB 432, rev'd [1983] All ER 432, add'd [1983] 2 All ER 93, add'd [1983] AC 1.

Government of the Islamic Republic of Iran v. The Barakat Galleries Ltd. [2007] EWCA Civ. 1374.

United States v. McClain 545 F.2d 988 (5th Cir. 1977).

United States v. Schultz, 178 F.Supp. 2d445 (S.D.N.Y. 3 January 2002), aff'd, 333 F.3d 393 (2nd Cir. (NY) 10 June 2003).

b. Legislation

Historic Articles Act of 1962 (New Zealand).

Customs Act of 1966 (New Zealand).

UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (adopted 14 November 1970).

UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (adopted 24 June 1995).

Directive 2014/60 of the European Parliament and of the Council on the return of cultural objects unlawfully removed from the territory of a Member State (adopted 15 May 2014).

c. Documents

Alessandro Chechi, Raphael Contel, Marc-André Renold, "Case Jiroft Collection - Iran v. The Barakat Galleries Ltd.," Platform ArThemis (http://unige.ch/art-adr), Art-Law Centre, University of Geneva.

d. Media

Finlayson, Christopher. "Motonui Panels Returned to New Zealand," National Government of New Zealand, July 4, 2014, accessed July 27, 2017. https://www.national.org.nz/news/news/media-releases/detail/2014/07/04/motunui-panels-returned-to-new-zealand.

Fleming, Hannah. "Push for Funds to Restore Ancient Epa," Stuff, May 17, 2012, accessed July 26, 2017. http://www.stuff.co.nz/taranaki-daily-news/news/6936469/Push-for-funds-to-restore-ancient-epa.

Hauptfuherer, Fred. "Jorge Ortiz Has His Kidnapped Daughter but Is Heartsick about Her Trauma and His Lost Art," People, July 17, 1978, Accessed July 16, 2017. http://www.people.com/people/archive/article/0,,20071298,00.html.

Harvey, Helen. "Motonui Panels Returned to Taranaki," Taranaki Daily News, March 20, 2015, accessed July 25, 2017. http://www.stuff.co.nz/taranaki-daily-news/news/67462225/motunui-panels-returned-to-taranaki.

Ministry for Arts, Culture, and Heritage. "The Motonui Panels: Returned to New Zealand," Media Release, Friends of Te Papa, July 4, 2014, accessed July 25, 2017. https://www.friendsoftepapa.org.nz/article/motunui-panels-returned-new-zealand/.

"Motonui Epa," Puke Ariki Museum, 2015. http://pukeariki.com/Exhibitions/Motunui-Epa.

"Motonui Panels Returned to New Zealand," Manatū Taonga, Ministry for Culture & Heritage, July 23, 2015, accessed July 27, 2017. http://www.mch.govt.nz/mi/news-events/ministers-releases/motunui-panels-returned-new-zealand.

Yates, Donna. "Ransoms and Repatriations: the Maori Motonui Panels," Anonymous Swiss Collector, July 5, 2014, accessed July 27, 2017. http://www.anonymousswisscollector.com/2014/07/ransoms-and-repatriations-the-return-of-the-carved-maori-motunui-panels.html.

Yates, Donna. "The Motonui Panels: Wait for Return," accessed August 12, 2017. https://s3.amazonaws.com/uploads.knightlab.com/storymapjs/e5d0e630ebd20e93c14d7c56367467fb/kidnapping-and-return-of-the-motunui-panels/index.html.

[1] A pātaka is a stilted wooden storehouse that was extremely important to communities. See Yates, "Ransoms and Repatriations".

[2] Yates, "The Motonui Panels".

[3] Attorney-General of New Zealand v. Ortiz [1982] 3 W.L.R. 570, 575-576. See also Finlayson, "Motonui Panels Returned", and Fleming, "Push for Funds to Restore Ancient Epa".

[4] Yates, "Ransoms and Repatriations". See also Yates, "The Motonui Panels".

[5] The sale of the other items in the collection brought Ortiz $2,9 million USD. Having recouped his loss from Graziella's ransom, Ortiz decided not to sell the panels. Hauptfuherer, "Jorge Ortiz Has His Kidnapped Daughter".

[6] Finlayson, "Motonui Panels Returned". See also Harvey, "Motonui Panels Returned to Taranaki".

[7] Ministry for Arts, Culture, and Heritage, "The Motonui Panels: Returned to New Zealand".

[8] Yates, "The Motonui Panels".

[9] Finlayson, "Motonui Panels Returned". See also Harvey, "Motonui Panels Returned to Taranaki".

[10] Attorney-General of New Zealand v. Ortiz [1982] 3 W.L.R. 570, 575-76, 580-82, 585. See also Finlayson, "Motonui Panels Returned".

[11] Section 12(2).

[12] Sections 275(4) and 276.

[13] Attorney-General of New Zealand v. Ortiz [1982] W.L.R. 570, 575-576, 580-582, 585.

[14] Attorney-General of New Zealand v. Ortiz (1982) Queen's Bench Division 349, 1 July 1981.

[15] Attorney-General of New Zealand v. Ortiz [1982] 3 W.L.R. 570 Court of Appeal 21 May 1982.

[18] Attorney-General of New Zealand v. Ortiz [1984] A.C. 1; [1983] 2 W.L.R. 809; 21 April 1983.

[19] Finlayson, "Motonui Panels Returned".

[20] Many States have ratified (and thus adopted domestic measures to implement) the following instruments: the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property adopted in 1970 by the United Nations Educational, Scientific, and Cultural Organization (UNESCO); the Convention on Stolen or Illegally Exported Cultural Objects adopted in 1995 by the International Institute for the Unification of Private Law (UNIDROIT); and the Directive 2014/60 of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State. Likewise, many bilateral agreements have been concluded by major art-importing countries, such as Switzerland (see at: https://www.bak.admin.ch/bak/en/home/cultural-heritage/transfer-of-cultural-property/bilateral-agreements.html) and the United States (see at: https://theantiquitiescoalition.org/problems-and-solutions/bilateral-agreements/).

[21] See United States v. McClain (545 F.2d 988 (5th Cir. 1977)); United States v. Schultz, 178 F.Supp. 2d445 (S.D.N.Y. 3 January 2002), aff'd, 333 F.3d 393 (2nd Cir. (NY) 10 June 2003); and Government of the Islamic Republic of Iran v. The Barakat Galleries Ltd. [2007] EWCA Civ. 1374. On the latter case see Alessandro Chechi, Raphael Contel, Marc-André Renold, "Case Jiroft Collection - Iran v. The Barakat Galleries Ltd.," Platform ArThemis (http://unige.ch/art-adr), Art-Law Centre, University of Geneva.

[22] United States v. McClain 545 F.2d 988, 1003 (5th Cir. 1977).

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Maori Panels - New Zealand and Ortiz Heirs

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In 1972, five rare Maori wooden panels were discovered in a swamp in New Zealand's North Island. Shortly after the discovery, the panels were illegally exported out of the country by an antiquities dealer and then bought by Swiss collector George Ortiz.

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Princeton Museum of Art signs agreement with Italian Cultural Authorities over antiquities. 

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Princeton Museum of Art signs agreement with Italian Cultural Authorities over antiquities. 

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In 2007 the Italian government and the Princeton Museum of Art signed an agreement that resolved the ownership of 15 disputed archaeological objects in the museum's collection. The Ministry of Cultural Heritage and Activities of the Republic of Italy inquired about the provenance of several antiquities in their collection based off of the evidence found after raiding Giacomo Medici's warehouse in Geneva. Negotiations over the disposition of 15 objects began after Princeton provided information on the disputed objects in their collection to the Italian government. An agreement was signed transferring the title of 8 of the objects to Italy while the museum retained 7 objects. Within this agreement, the Italian government also granted Princeton University students to access archaeological sites managed by the Italian Ministry and the museum would receive a number of significant works of art on loan. This agreement is an example of an efficient out-of court settlement that returned objects of cultural importance back to Italy, avoided litigation and negative press, and established a program of cultural cooperation and collaboration between the two parties.

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The Princeton University Art Museum and Italian cultural authorities on Oct. 30 signed an agreement that resolves the ownership of 15 works of art in the museum's collection. The signing took place in Rome.

"This agreement meets Princeton's two primary goals," museum Director Susan Taylor said in a statement released after the signing. "First, it is consistent with our long-standing commitment to responsible stewardship of our collections. Second, it encourages the development of future opportunities for collaboration that will advance new scholarship in both Italy and the United States.

"It is our hope that this agreement will open up new avenues of cooperation and exchange," she said. "The fulfillment of these goals is in the interests of the communities served by Princeton and all American art museums: scholars, educators, students, art lovers and the general public. We are grateful to the officials in the Italian government -- in particular Minister of Culture Francesco Rutelli, Giuseppe Proietti, head of the Department of Research, Innovation and Organization, and Maurizio Fiorilli, counsel for the Italian government -- for their cooperation."

The agreement includes three works that became the subject of an Italian inquiry in 2004: a Greek psykter, an Apulian loutrophoros and an Etruscan relief. Two of these works -- the psykter and the loutrophoros, which are types of vases -- will remain on loan to the University museum as part of a joint research program established between the museum and the Italian government. The agreement transfers title to all three objects to Italy.

These objects are among 15 antiquities in the museum's collection that became the subject of broader discussions between the Princeton museum and the Ministry of Cultural Properties and Activities of the Republic of Italy. As a result of those discussions, Princeton will keep seven objects and transfer title to eight. Of the eight objects whose ownership transfers to Italy, half -- including the psykter and the loutrophorous -- will remain on loan to the museum for four years.

In addition, the Italian ministry has agreed to lend to the Princeton museum a number of additional works of art of great significance and cultural importance.

Also as part of the agreement, Princeton students will be granted unprecedented access to excavation sites managed by the Italian ministry for the purposes of archaeological study and research.

"We are pleased with the outcome of our negotiations with the Italian authorities," Taylor said. "This agreement reflects and supports the research and educational mission of the University art museum, enabling us to retain a number of objects, repatriate others that belong to Italy, and have unprecedented access, on a long-term loan basis, to additional material.

"Some of the works being lent to us have never been outside Italy, but will now be available to Princeton students and scholars for study and research," Taylor said. "We believe this agreement creates a new, cooperative model that will benefit students and scholars for many years to come."

Taylor was part of a small Princeton delegation that led discussions with Rutelli's representatives. Talks began in April 2006, after the University sought to learn more about public reports of the Italian government's interest in items in the Princeton museum's collection.

In January 2005, the museum provided details about several works in its collection in response to a December 2004 inquiry. The disposition of the 15 works reviewed in ensuing discussions was based on mutual agreement between Princeton and the Italian ministry.

The Princeton University Art Museum has a history of successfully resolving ownership claims for works of art and cultural artifacts in its collection. Most recently, in 2002, the museum voluntarily returned to the Italian government an ancient Roman sculptural relief in its collection, having contacted the Italian authorities after the museum's own research revealed that the work was taken out of Italy without a legal export permit before being acquired by the museum in good faith in 1985.

In 2001, the museum reached an amicable agreement with the heirs of a painting sold in Nazi-occupied France and later purchased in good faith by Princeton in 1994; and the museum in 1953 returned to Rome an ancient marble head of a goat stolen in World War II. The mayor of Rome later gave the sculpture back to Princeton in recognition of the museum's commitment to learning.

Taylor and Rutelli have said that this agreement ushers in a new era in relations between the museum and Italy.

"In this case, the museum has gained access to indispensable resources in Italy, and so has initiated a potentially new chapter in cooperation and the advancement of scholarship," Taylor said of the loan and research agreement.

Below is a list of objects to be retained by the Princeton University Art Museum, and also a list of items to be returned.

Four objects transferred in title but to remain on loan to the Princeton University Art Museum from the Ministry of Cultural Properties and Activities of the Republic of Italy.

1. Red figure loutrophoros (ceramic), attributed to the Darius Painter, depicting the mourning of Niobe and woman and youths at a foundation house. South Italian, Apulian, ca. 335-325 B.C.

2. Head of a winged lion (brown volcanic stone). Etruscan, ca. 550-525 B.C.

3. Red figure psykter depicting Symposion, or drinking party (ceramic), attributed to the Kleophrades Painter. Greek, Attic, ca. 510 500 B.C.

4. Red figure volute krater, attributed to the Iliupersis Painter (ceramic), depicting the return of Perseus to Seriphos and Dionysos, maenads and satyrs. South Italian, Apulian, ca. 370 360 B.C.

Four objects to be transferred from the Princeton University Art Museum to the Ministry of Cultural Properties and Activities of the Republic of Italy.

5. Columen plaque with a Centaur in Relief (Terracotta, painted). Etruscan, southern Etruria or Latium, ca. 500-480 B.C.

6. Oinochoe with a serpent around the body (ceramic). Etruscan, ca. 675 B.C.

7. Black figure skyphos fragment with a sprinting youth (ceramic). Etruscan, ca. 510 500 B.C.

8. Oinochoe, attributed to the Ivy Leaf Group, with naked male runners holding large ivy leaves (ceramic). Etruscan, ca. 540-530 B.C.

Seven objects to remain permanently at the Princeton University Art Museum.

9. Red figure kylix attributed to the Brygos Painter, depicting on its inside Hermes and one of the cattle of Apollo, and on the outside infant Hermes and the cattle of Apollo (ceramic). Greek, Attic, ca. 490 480 B.C.

10. Inlaid dagger and sheath (bronze, iron, silver, gold, niello). Roman, ca. first-second centuries A.D.

11. Plate with the Ransom of Hector (ceramic). Greek, Corinthian, ca. 580 570 B.C.

12. Fragment from a red figure lekythos depicting flying Nike (ceramic). Greek, Attic, ca. 480 470 B.C.

13. Pair of charging Amazons (painted terracotta). Greek, South Italy, Canosa, ca. 300 280 B.C.

14. Vessel (guttus) in the form of a drunken Silenus (ceramic). Greek, South Italy, Apulian, fourth century B.C.

15. Teano ware vessel in the form of a bird (ceramic). South Italy, Campanian, ca. 325 300 B.C.

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Princeton University Art Museum and Italy sign agreement over antiquities

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The Princeton University Art Museum and Italian cultural authorities on Oct. 30 signed an agreement that resolves the ownership of 15 works of art in the museum's collection. The signing took place in Rome. "This agreement meets Princeton's two primary goals," museum Director Susan Taylor said in a statement released after the signing.

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I have put this case under 'Other'  although the repatriation process was dealt with by negotiation, a change in German law was required in order for the repatriation to happen.
https://www.gondwana-collection.com/news/article/2019/03/06/witbooi-bible-returned-to-namibia/