Tribal masks and public morals

Native American tribal masks were auctioned in Paris last Friday, gathering a total tally of € 931,000. Although the Arizona tribe’s leader insisted that the tribe had been deprived of the masks illegally, his people and Survival International could not convince the Paris judge to stop the auction (WaPo).

The case seems strikingly reminiscent of a 1972 judgment of the Federal Court of Justice, Germany’s highest civil court.[1] That case concerned the trade of tribal Nigerian bronze masks between Nigeria and Hamburg. The court held that both the shipping contract and the transport insurance of the masks were void due to a violation of public morals. In specifying the demands of public morals, the court looked at proclamations of the Unesco and its Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (even though that convention entered into force only after the bronze masks were traded). The fact that an international forum had repeatedly acknowledged the importance of preserving the cultural heritage of indigenous peoples and even drafted a convention on this matter was sufficient for the Federal Court of Justice to hold that the trade of cultural goods violating that convention also violates German public morals.

The Paris court, however, held that “no provision forbidding the sale, outside of the United States of America, of objects having been or likely to be used for religious ceremonies is applicable in France.” The court did not consider that the auction might violate Art. 1133 Code Civil (on public morals and policy) in connection with the 1970 Unesco Convention on Cultural Property.

[1] Case discussed in: R. Grabosch, Die Rezeption des Völkerrechts durch die deutschen Zivilgerichte [The reception of international law through German civil courts], Kritische Justiz 2013, 30.