Restitution of a “long-necked” Tsogho mbumba to the Musée du Quai Branly- Jacques Chirac. Interview with attorney Yves-Bernard Debie, member of the Barreau de Bruxelles (the Brussels Bar Association) and a specialist in international art law. Tribal Art Magazine: Why was this Tsogho work subject to restitution? Yves-Bernard Debie: While we know nothing of the circumstances surrounding the disappearance of this work from the storage of the Musée d’Ethnographie du Trocadéro where it had been since 1934, one thing is certain: It is a piece of cultural property that belonged to a public French museum, and according to the fi rst paragraph of article L. 451-5 of the Patrimony Code, “property in the collections of the public museums of France is part of the public domain and is therefore inalienable.” The fact that those objects are inalienable property is imprescriptible, which is to say that an individual, collector, or dealer, even if having acted in good faith, can have no right to own such property, and no statute of limitations is applicable. Whether it has been in his or her possession for fi ve, ten, or even a hundred years makes no difference. These principles of inalienability and imprescriptibility applicable to French public museum collections justify and even require the restitution of any illegally held work. T.A.M.: Clearly the cultural property of French public museums is inalienable and subject to restitution, but what about works whose restitution is demanded by foreign museums, countries, or peoples who maintain that they were looted? Y.-B.D.: That is a huge subject and one that is far too complex and important to be dealt with in a few brief questions and answers. Tribal Art magazine has already reported on several restitution demands of this kind, notably on the case of the “Maori heads” (issue 57) and on the actions taken by the Hopi tribe against French auction houses (issues 69 and 71). Restitution demands made by so-called countries of origin, foreign museums, individuals, or institutions must, of course, like any other kind of demand, be examined from a legal point of view. It is not morality that protects French public museum collections, and to a large extent European ones in general, but the law, which represents the culmination of a national legislative process or an international one for which conventions have been drafted and ratifi ed. The UNESCO convention of November 14, 1970, which relates to cultural property, is a case in point and is exemplary when it is understood and correctly applied (see Tribal Art magazine, issue 69). Important legal principles protect accused parties and place obstacles in the way of unfounded or tardy demands. Thus, with only few exceptions, lawsuits, whether civil or criminal, must be fi led in a timely fashion, under a statute of limitations that may 144 vary from country to country or according to the kind of property in question. One must also understand that property acquired in good faith is also protected. For example, according to the Civil Code in effect in France and Belgium, among many other countries, relating to most kinds of personal property, “possession is title,” and in most situations the owner of such property cannot be required to show evidence of title (a receipt or any other kind of bill) since it is understood he may no longer have or may never have had this documentation. For example, how would one go about proving having purchased a mask or a fi gure at a fl ea market twenty years ago? A principle of territoriality is inherent in the law. French law does not apply in China, the Americas, or Africa, and vice versa. Specifi cally, cultural property deemed inalienable in one country or another is not necessarily so in France. Questions relating to the admissibility of an action to restitute and to the competency of a party to act in that capacity also must be answered. That may seem obvious, but it is a legal issue. The party making the demand for restitution must have a legitimate status for making it and must have some kind of title or right to the property. Recently, the press reported on restitution demands made by a collector against dealers among whom he had found objects that had been held by an African museum—a private one apparently. By what right? On what legal grounds? Threatened with bad press more than they were by the lawsuits themselves, the dealers appear to have agreed to pay some damages, even though the courts undoubtedly would not have received the case favorably or even heard it. Such practices, even if motivated by good intentions, cannot be tolerated in a state in which the law rules. The principles of legality must be respected in matters of restitution as elsewhere: nullum crimen, nulla poena sine lege— no crime, no penalty without a law. T.A.M.: Are situations like the one of this Tsogho mbumba common? When in doubt, what should a collector do? Y.-B.D.: Situations of this kind may not be common, but they aren’t rare either, and it is not always simple to distinguish between the cases that are legitimate and the ones that aren’t. The doubt often arises from the consultation of a book or an exhibition catalog, but one must bear in mind that many works that once belonged to museums all over the world were deaccessioned transparently and completely legally. An example would be the many New Ireland works formerly in German museums that are now in the hands of private collectors. Other works, although the property of private parties, were exhibited in museums, sometimes for decades, before being sold. When there is doubt, one must verify if the work the litigation concerns was at some recent or more distant date removed from the inventory of an inalienable museum collection in violation of the law. Restitution is called for if, and only if, that turns out to be the case. OBJECT HISTORY
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