5 See WIPO press release of 3 May 2011, available at: www.wipo.int/pressroom/en/articles/
2011/article_0015.html (24.04.2012).
6 On that subject, see supra in this book the paper by THEURICH SARAH, The Role of International Institutional Dispute Resolution in Art and Cultural Heritage Matters: The World Intellectual Proper-ty Organization (WIPO) and its Arbitration and Mediation Center.
7 See http://www.wipo.int/amc/en/center/specific-sectors/art/ (24.04.2012).
In 2005, ICOM started to encourage the amicable resolution of disputes regarding the ownership of objects in museum collections that were allegedly stolen or illegally ex-ported from the country of origin, as well as early settlement procedures rather than lengthy and expensive litigation.
The 22nd General Assembly of ICOM adopted in 2007 Resolution No. 4 on “Preventing Illicit Traffic and Promoting the Physical Return, Repatriation and Restitution of Cultur-al Property”, which recommends in particular the use of mediation in such disputes8. With this in mind, ICOM established an international mediation discussion group to consider issues relating to the return/restitution of cultural property in museums collec-tions that were stolen, illegally exported, illegally confiscated, or otherwise wrongfully expropriated.
In 2007, a draft guidance note, prepared by Marilyn Phelan, a member of the ICOM Legal Affairs Committee, explained practical aspects of invoking and pursuing the ICOM Mediation Policy.
In 2008, the ICOM Legal Affairs Committee considered mediation as an alternative dispute resolution process for cultural issues and this position was confirmed and very well supported during the International Bar Association (IBA) Conference in Argentina (in mid-October 2008).
In accordance with its ethical standards, ICOM deemed that preventive mechanisms are vital tools for appeasing conflicts involving cultural and/or intellectual property issues.
The museum community has indeed long expressed a need for an innovative and special-ized dispute resolution system, which further fostered the ICOM-WIPO Mediation initia-tive.
B. ICOM Mediation Precedent: Donation of the Makonde Mask in 2010
ICOM has experienced early on the positive role that a neutral intermediary can play in the resolution of a restitution dispute. This can be illustrated with the Makonde Mask
8 The Resolution is available at: http://icom.museum/who-we-are/the-governance/general-assembly/
resolutions-adopted-by-icoms-general-assemblies-1946-to-date/vienna-2007.html (24.04.2012).
The ICOM-WIPO Mediation Program is part of a general collaboration between ICOM and WIPO. This collaboration goes back a number of years and has been formalized in a Memorandum of Understanding concluded between the two organizations on 3 May 20115. Under that Memorandum, WIPO and ICOM agreed to collaborate in a number of areas relating to museums and the management of intellectual property. This concerns in particular copyright, traditional knowledge and traditional cultural expressions, the digit-ization of cultural artifacts, as well as dispute resolution.
This paper briefly sets out the background to the ICOM-WIPO Mediation Program (II), followed by an explanation of the different procedural and administrative features of the ICOM-WIPO Mediation Framework (III).
II. Background to the ICOM-WIPO Mediation Program
Both ICOM and WIPO are active in art and cultural heritage and have long recognized the benefits of ADR in this area.
Since its creation in 1994, the WIPO Arbitration and Mediation Center has gained in-depth experience with the time and cost efficient resolution of intellectual property relat-ed disputes6. In particular, it provides a specialized WIPO Art and Cultural Heritage ADR Service7, which includes the ICOM-WIPO Mediation Program, as well as other ADR procedures.
ICOM has been endorsing ADR for the resolution of such disputes for a number of years and has also gained experience in the provision of good offices.
A. ICOM Endorsement of Amicable Dispute Resolution
Over the past few years, ICOM has developed an increasing interest in intellectual prop-erty as a major tool for museums’ cultural heritage protection. In the face of globaliza-tion, and knowledge and technology based development, ICOM sought a proper legal balance and a global system of cultural heritage and intellectual property protection.
5 See WIPO press release of 3 May 2011, available at: www.wipo.int/pressroom/en/articles/
2011/article_0015.html (24.04.2012).
6 On that subject, see supra in this book the paper by THEURICH SARAH, The Role of International Institutional Dispute Resolution in Art and Cultural Heritage Matters: The World Intellectual Proper-ty Organization (WIPO) and its Arbitration and Mediation Center.
7 See http://www.wipo.int/amc/en/center/specific-sectors/art/ (24.04.2012).
In 2005, ICOM started to encourage the amicable resolution of disputes regarding the ownership of objects in museum collections that were allegedly stolen or illegally ex-ported from the country of origin, as well as early settlement procedures rather than lengthy and expensive litigation.
The 22nd General Assembly of ICOM adopted in 2007 Resolution No. 4 on “Preventing Illicit Traffic and Promoting the Physical Return, Repatriation and Restitution of Cultur-al Property”, which recommends in particular the use of mediation in such disputes8. With this in mind, ICOM established an international mediation discussion group to consider issues relating to the return/restitution of cultural property in museums collec-tions that were stolen, illegally exported, illegally confiscated, or otherwise wrongfully expropriated.
In 2007, a draft guidance note, prepared by Marilyn Phelan, a member of the ICOM Legal Affairs Committee, explained practical aspects of invoking and pursuing the ICOM Mediation Policy.
In 2008, the ICOM Legal Affairs Committee considered mediation as an alternative dispute resolution process for cultural issues and this position was confirmed and very well supported during the International Bar Association (IBA) Conference in Argentina (in mid-October 2008).
In accordance with its ethical standards, ICOM deemed that preventive mechanisms are vital tools for appeasing conflicts involving cultural and/or intellectual property issues.
The museum community has indeed long expressed a need for an innovative and special-ized dispute resolution system, which further fostered the ICOM-WIPO Mediation initia-tive.
B. ICOM Mediation Precedent: Donation of the Makonde Mask in 2010
ICOM has experienced early on the positive role that a neutral intermediary can play in the resolution of a restitution dispute. This can be illustrated with the Makonde Mask
8 The Resolution is available at: http://icom.museum/who-we-are/the-governance/general-assembly/
resolutions-adopted-by-icoms-general-assemblies-1946-to-date/vienna-2007.html (24.04.2012).
case in which ICOM carried out its good offices. ICOM’s involvement in this matter helped to facilitate a solution, as explained below9.
1. History of the Makonde Mask
The Makonde Mask10, a “lipiko” helmet mask type, characterized by its realism and caricature features, was initially part of the collections of the National Museum of Tan-zania in Dar Es Salaam. In 1984 the mask was stolen from the National Museum of Tanzania together with other artifacts. The theft was reported to all relevant authorities at national and international level, including the Tanzanian police, the International Crimi-nal Police Organization (INTERPOL) and ICOM.
In 1990, an Italian professor from the University of Perugia informed the Barbier-Mueller Museum in Geneva (Switzerland) that the Makonde Mask in its collection might come from the Dar Es Salaam Museum. The Barbier-Mueller Museum immediately informed ICOM, indicating that the object had been purchased in Paris in 1985.
The Barbier-Mueller Museum thereafter initiated appropriate steps and proposals to facilitate a possible return of the Makonde Mask to Tanzania. In 2002, the Barbier-Mueller Museum officially indicated the conditions under which it would accept to trans-fer ownership of the Makonde Mask to the United Republic of Tanzania. Although the Director General of the National Museum of Tanzania highly appreciated the handling of the case by the Barbier-Mueller Museum, the parties could not reach an agreement over the question of ownership.
In 2006, negotiations were frozen after the United Republic of Tanzania filed a request for the return of the Makonde Mask with the Secretariat of the UNESCO Intergovern-mental Committee for Promoting the Return of Cultural Property to its Countries of Origin or Restitution in case of Illicit Appropriation (ICPRCP). In reaction to Tanzania’s action, the Barbier-Mueller Museum filed a formal and official complaint against the United Republic of Tanzania with the Federal Office of Culture of Switzerland.
9 The description of the Makonde Mask case in this paper is mainly reproduced from the correspond-ing ICOM press release of 10 May 2010 with the kind authorization of ICOM. The press release is available at: http://archives.icom.museum/press/MM_PressFile_eng.pdf (24.04.2012).
10 The Makonde Mask is 30.5 cm high and made of soft, lightweight wood, wax and pigment. Its hair and moustache are made of human hair. This kind of mask was usually worn during male initiation festivals. The dancers looked out through the mouth opening of the mask and attached their costume through a hole at the rim of the mask.
2. Donation of the Makonde Mask
In August 2009, the Ministry of Natural Resources and Tourism of Tanzania informed the Barbier-Mueller Museum of its intent to accept the required conditions proposed by the Swiss Museum in 2002. A governmental delegation of Tanzania met the representa-tives of the Barbier-Mueller Museum in Geneva, on 6 November 2009, to conduct good faith discussions and negotiations, which eventually led to the donation of the Makonde Mask to Tanzania.
The donation of the Makonde Mask is the happy outcome of more than twenty years of negotiations and efforts by the two parties involved as well as ICOM’s good offices.
Under the auspices of ICOM, the United Republic of Tanzania and the Barbier-Mueller Museum signed an agreement for the donation of the Makonde Mask to the National Museum of Tanzania on 10 May 2010, in Geneva. The ceremony was organized by ICOM and was held in Paris, in the presence of ICOM’s Director General, Mr Julien Anfruns; Dr Donatius M. K. Kamamba and Ms Caroline Mchome, the Permanent Secre-tary and the Head of the Legal Unit of the Ministry of Natural Resources and Tourism of Tanzania; Ms Monique Barbier-Mueller, the co-founder of the Barbier-Mueller Museum;
and Ms Laurence Mattet, the Director General of the Barbier-Mueller Museum.
III. The ICOM-WIPO Mediation Framework
The ICOM-WIPO Mediation Program provides an efficient procedural and administra-tive framework that was jointly developed by the WIPO Center and ICOM11. The pro-cess has been customized to art and cultural heritage disputes. Specialized practical tools make it easy to use for parties.
11 On the ICOM-WIPO Mediation Process, see for example, SLIMANI SAMIA, When the Dust Settles – How ICOM and WIPO Created a Programme to Facilitate Dispute Settlements Related to Art and Cultural Heritage, ICOM News 2011 Nr. 2, pp. 16 et seqq, http://icom.museum/fileadmin/user_
upload/pdf/ ICOM_News/2011-2/ENG/p16-17_2011-2.pdf (24.04.2012); see also THEURICH SARAH, ICOM-WIPO Mediation: A New Option for Efficient Art and Cultural Heritage Dispute Resolution, IBA Art, Cultural Institutions and Heritage Law Committee’s Newsletter, Vol. 9 No. 1, October 2011.
case in which ICOM carried out its good offices. ICOM’s involvement in this matter helped to facilitate a solution, as explained below9.
1. History of the Makonde Mask
The Makonde Mask10, a “lipiko” helmet mask type, characterized by its realism and caricature features, was initially part of the collections of the National Museum of Tan-zania in Dar Es Salaam. In 1984 the mask was stolen from the National Museum of Tanzania together with other artifacts. The theft was reported to all relevant authorities at national and international level, including the Tanzanian police, the International Crimi-nal Police Organization (INTERPOL) and ICOM.
In 1990, an Italian professor from the University of Perugia informed the Barbier-Mueller Museum in Geneva (Switzerland) that the Makonde Mask in its collection might come from the Dar Es Salaam Museum. The Barbier-Mueller Museum immediately informed ICOM, indicating that the object had been purchased in Paris in 1985.
The Barbier-Mueller Museum thereafter initiated appropriate steps and proposals to facilitate a possible return of the Makonde Mask to Tanzania. In 2002, the Barbier-Mueller Museum officially indicated the conditions under which it would accept to trans-fer ownership of the Makonde Mask to the United Republic of Tanzania. Although the Director General of the National Museum of Tanzania highly appreciated the handling of the case by the Barbier-Mueller Museum, the parties could not reach an agreement over the question of ownership.
In 2006, negotiations were frozen after the United Republic of Tanzania filed a request for the return of the Makonde Mask with the Secretariat of the UNESCO Intergovern-mental Committee for Promoting the Return of Cultural Property to its Countries of Origin or Restitution in case of Illicit Appropriation (ICPRCP). In reaction to Tanzania’s action, the Barbier-Mueller Museum filed a formal and official complaint against the United Republic of Tanzania with the Federal Office of Culture of Switzerland.
9 The description of the Makonde Mask case in this paper is mainly reproduced from the correspond-ing ICOM press release of 10 May 2010 with the kind authorization of ICOM. The press release is available at: http://archives.icom.museum/press/MM_PressFile_eng.pdf (24.04.2012).
10 The Makonde Mask is 30.5 cm high and made of soft, lightweight wood, wax and pigment. Its hair and moustache are made of human hair. This kind of mask was usually worn during male initiation festivals. The dancers looked out through the mouth opening of the mask and attached their costume through a hole at the rim of the mask.
2. Donation of the Makonde Mask
In August 2009, the Ministry of Natural Resources and Tourism of Tanzania informed the Barbier-Mueller Museum of its intent to accept the required conditions proposed by the Swiss Museum in 2002. A governmental delegation of Tanzania met the representa-tives of the Barbier-Mueller Museum in Geneva, on 6 November 2009, to conduct good faith discussions and negotiations, which eventually led to the donation of the Makonde Mask to Tanzania.
The donation of the Makonde Mask is the happy outcome of more than twenty years of negotiations and efforts by the two parties involved as well as ICOM’s good offices.
Under the auspices of ICOM, the United Republic of Tanzania and the Barbier-Mueller Museum signed an agreement for the donation of the Makonde Mask to the National Museum of Tanzania on 10 May 2010, in Geneva. The ceremony was organized by ICOM and was held in Paris, in the presence of ICOM’s Director General, Mr Julien Anfruns; Dr Donatius M. K. Kamamba and Ms Caroline Mchome, the Permanent Secre-tary and the Head of the Legal Unit of the Ministry of Natural Resources and Tourism of Tanzania; Ms Monique Barbier-Mueller, the co-founder of the Barbier-Mueller Museum;
and Ms Laurence Mattet, the Director General of the Barbier-Mueller Museum.
III. The ICOM-WIPO Mediation Framework
The ICOM-WIPO Mediation Program provides an efficient procedural and administra-tive framework that was jointly developed by the WIPO Center and ICOM11. The pro-cess has been customized to art and cultural heritage disputes. Specialized practical tools make it easy to use for parties.
11 On the ICOM-WIPO Mediation Process, see for example, SLIMANI SAMIA, When the Dust Settles – How ICOM and WIPO Created a Programme to Facilitate Dispute Settlements Related to Art and Cultural Heritage, ICOM News 2011 Nr. 2, pp. 16 et seqq, http://icom.museum/fileadmin/user_
upload/pdf/ ICOM_News/2011-2/ENG/p16-17_2011-2.pdf (24.04.2012); see also THEURICH SARAH, ICOM-WIPO Mediation: A New Option for Efficient Art and Cultural Heritage Dispute Resolution, IBA Art, Cultural Institutions and Heritage Law Committee’s Newsletter, Vol. 9 No. 1, October 2011.