SACRED OBJECTS AS UNABLE TO BE GOODS SUBJECT TO COMMERCIAL TRANSACTIONS

Roman law created separate categories for religious things (res divini juris) and human things (res humani juris). The former mainly included sacred things, res sacrae, which could not be privately owned because they were dedicated to the gods during the pagan and Christian periods and were reserved for worship.^{Footnote 7} Alongside the res sacrae, Roman law distinguished res sanctae (holy things), which also could not be privately owned because they “had become venerable as a result of a religious ceremony,” and res religiosae, in other words, tombs and burial places.^{Footnote 8}

The French Civil Code no longer contains any references to the sacred or the divine. However, in contemporary property law, this notion is not entirely unheard of: Owing to their nature, some objects cannot be subject to ownership. However, this legal category of unownable objects is constantly shrinking due to “the ceaseless expansion of trade.”^{Footnote 9} Moreover, it is not a very homogeneous category. Very few of the objects in it actually relate to the sacred: Burial places, obviously, and the human body are protected owing to respect for the dead and the principle of human dignity, which one author has described as a modern version of the sacred.^{Footnote 10} Under Article 16-1 of the Civil Code, the human body may not be the subject of a patrimonial right; hence it is excluded from the category of ordinary goods and falls into the category of things “which can be used by men only in a certain way.”^{Footnote 11} The rule introduced into Article 16-1 in 1994 has been complemented by the so-called bioethics laws. The Act of 19 December 2008 introduced a new Article 16-1-1, according to which, “the respect owed to the human body does not end with death.” It also states that “the remains of the deceased, including the ashes in the event of cremation, shall be treated with respect, dignity and decency,” and the court may take any measure needed to prevent or stop violation of this. The first judicial precedent on this matter was the “Our Body” case, concerning an exhibition of human remains staged in active poses^{Footnote 12} held in Paris by Encore Events. Two associations (Ensemble contre la peine de mort and Solidarité Chine) initiated summary proceedings so that the exhibition could be banned. They claimed that it constituted a clearly unlawful disturbance within the meaning of Article 16ff of the Civil Code, and they also suspected that it involved the trafficking of Chinese prisoners’ and executed people’s dead bodies.

The reasons for the decisions by the various courts to which the case was referred, from the High Court to the Court of Cassation, show that it was really difficult for the judges to find bases for a ban. During the summary proceedings, the judge recognized that such exploitation of the human body was a manifestly unlawful disturbance, and argued that it was prohibited to turn the human body into a commodity and that the aesthetic display of the corpses had no scientific legitimacy. “Arbitrary colours” and “unrealistic staging” were mentioned.^{Footnote 13} The appellate judges delivered very different reasons, claiming that the origin of the bodies was uncertain and that there was no proof that the people whose remains were displayed had given their consent.^{Footnote 14} The event’s organizer was unable to provide information on the source of the bodies, and a dubious origin was suspected (they may have been the bodies of Chinese people sentenced to death). For its part, the Court of Cassation applied the Civil Code strictly.^{Footnote 15} Pursuant to Article 16-1-1, Paragraph 2, which requires treating human remains with respect, the Court stated that “the display of corpses for commercial purposes fails to comply with this requirement” and that “the appellate judges, in finding that the exhibition was pursuing such ends, rightly exercised their powers under Article 16-2 of the Civil Code when they banned it.”^{Footnote 16} The ban was clearly a consequence of the “commercial” nature of the exhibition. The Civil Code prohibits any lucrative trade in human bodies. In this case, it was not the exhibition per se but its commercial purposes that the judge found to be in violation.

No one shall trade in a part of the human body. Based on this, could the Hopi masks have been subject to the same protection as human remains, owing to the fact that they are ritual objects and have the status of sacred things that cannot be owned? In reality, the Civil Code’s rules governing trade in human bodies are not intended to apply to artifacts. The judge for urgent applications explicitly said that their mere symbolic value was not sufficient. The principle of dignity is intended to protect the human body in all its states, as well as tombs containing human remains, but in no case should it apply to funeral rites and associated objects. While for the Hopi people these masks may “have sacred value, be of a religious nature, or embody the spirits of the ancestors of those persons, it is clear that they cannot be likened to human bodies or pieces of the bodies of living or dead persons that could be protected on the basis of general principles accepted in positive law and contained in Article 16-1-1 of the Civil Code.” Contrary to other legal systems, French civil law does not provide that the sacred nature of an object has consequences on how the law applies to it.^{Footnote 17} Likewise, the broader category of unownable things does not prevent these objects from being governed by ordinary law.

In addition to the rules on the status of the human body and tombs, the Association also referred to the case law on family property. However, this was actually of no help considering that this category applies only to certain items owned by a family and generally by the rules applicable to those objects. On one hand, long-term possession or family attachment is not enough: The objects should also be identifiable as family objects; that is, they should intimately convey the memory of the family (family portraits, family archives). On the other hand, as regards the status of such family objects, property that is legally recognized as conveying family memories can no longer be shared under the common rules and heirs can oppose dispersal of it. However, such property is not inalienable. The heirs may come to an agreement to sell it. In addition, third persons can be granted rights over the property, notably if they possess it in good faith. It can also be seized because of debt.

French law does not recognize the sacred nature of these objects. However, under United States Native American law, these objects may not be sold. Could this law not have been applied? When Iran claimed a collection of antiques a few years ago, English judges granted the demand for restitution on the basis of Iranian legislation on cultural heritage protection.^{Footnote 18} Nonetheless, in French courts, as in most other national courts, judges refuse to take foreign public law into account on the grounds of the territoriality principle, which discourages most people from taking legal action.^{Footnote 19} Hence the judge’s decision in the present case is not very surprising.^{Footnote 20}

It still may be possible to invoke international agreements. When Sotheby’s recently auctioned pre-Colombian objects from the Barbier-Müller collection, the Peruvian Minister of Culture announced that he would “ask the Ministry for Foreign Affairs to claim the objects through diplomatic channels, in accordance with international treaties” (Duchesne and Simode 2013). However, these agreements need to prove effective in terms of both time and space.^{Footnote 21} In that respect, and more particularly with regard to the notion of the sacred, international texts are not always of great assistance. The Declaration on the Rights of Indigenous Peoples adopted by the UN General Assembly in 2007 includes provisions on the right to repatriate certain objects, including human remains. However the requirements concerning restitution of ceremonial objects are not very restrictive. The declaration recommends that states should “seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession.”^{Footnote 22} In any event, as the judge pointed out, this resolution “cannot be the legal basis of action taken against a commercial auction house hired by an individual to sell goods that the latter claims to own.”

Nevertheless, an object with important symbolic value may evidently prompt voluntary restitution. The Louvre (the “state” would be more appropriate since the Louvre holds national collections) was not forced to return the Tetiky frescoes to Egypt, and it can reasonably be said that the fact that it did so was due to the sensitive situation. Some texts actually encourage public institutions to take into account so-called “sensitive” objects. In Article 4-3 concerning the exhibition of sensitive material, the International Council of Museums (ICOM) Code of Ethics states: “human remains and materials of sacred significance must be displayed in a manner consistent with professional standards and, where known, taking into account the interests and beliefs of members of the community, ethnic or religious groups from whom the objects originated.” It further refers to “usage of collections from contemporary communities [that] requires respect for human dignity and the traditions and cultures that use such material” (Article 6-7; ICOM Code of Ethics 2004).

On the contrary, the French circular dated 26 April 2007,^{Footnote 23} which was greatly inspired by the ICOM Code of Ethics, provides few requirements. A paragraph entitled “Respecting human remains” simply reminds us that we must ensure that “human remains are studied, preserved and displayed in accordance with professional standards and with respect for human dignity.” In the French system, symbolic and ceremonial objects can be subject only to voluntary restitution unless it can be proven that they were unlawfully removed. The case of the Tetiky murals is a significant example. In order to cancel the sale, it would have been necessary to question the good faith of the Louvre, the outcome of which would have been very uncertain, but in any event the restitution could not be based merely on the sacred nature of the property.

In the present case, the issue of ownership was also discussed and must be linked with the legal interest in bringing the action.

ADMISSIBILITY AND ISSUES OF OWNERSHIP: THE GROUP’S RIGHT TO TAKE ACTION

The admissibility of the action is evidently a key issue when summary proceedings are initiated to stop a sale. According to Article 31 of the Code of Civil Procedure, “taking action is the right of all those who have a legitimate interest in the success or dismissal of a claim, without prejudice to those cases where the law confers the right of action solely upon persons whom it authorizes to raise or oppose a claim, or to defend a particular interest.” When the law does not limit the right of action to certain persons, legal interest in taking action becomes crucial. No interest means no action. The judge for urgent applications had to rule on this question. The Association argued that the purpose provided for in its statutes gave it the right to act. Néret-Minet, Tessier et Sarrou claimed that the Association could not “take action on behalf of a third party, namely, the Hopi Tribe,” and that it could “take action only within the limits of the Association’s purpose of defending the collective interests of the Association’s members.” On the contrary, the judge ruled that the action was admissible because the interests defended fell within the purpose of the Association, which is “to help minority indigenous peoples everywhere in the world to exercise their rights to survival and self-determination, to ensure that their interests are taken into consideration in an appropriate manner in all decisions that could affect their future, and to make sure they are guaranteed ownership and use of sufficient land and other resources necessary to them.” The Association was taking action within the limits of its purpose and not in the interest of the Hopi tribe.^{Footnote 24} The judges indeed noted that the Hopi objects offered at the sale were “items necessary for expression of their beliefs that enable them to communicate with their ancestors.”^{Footnote 25} However, neither the presence of imminent damage nor a clear violation of legislation or of a principle accepted in positive law were acknowledged. On the first point, the Association failed to establish “that it will be absolutely impossible for it to institute proceedings on the merits against the possible acquirers of the objects placed on sale.”

The Hopi tribe intended to voluntarily intervene in the proceedings on principal basis. Intervention will be principal where it raises a claim to the benefit of the party filing it (Art. 329 of the Code of Civil Procedure). However, the voluntary intervention was declared null since the adversarial principle was not respected: The auction house was informed on very short notice and did not have time to prepare its defense.^{Footnote 26} The issues of whether the Hopi tribe had the legal capacity to take action and whether it had legal interest in taking action were not addressed in the judgment. However, one can wonder what might have been decided, had the claim been submitted on time.

Difficulties would have arisen concerning the applicable law and the possibility for a tribe to take legal action.^{Footnote 27} Regarding the first issue (this is a traditional solution in private international law) the capacity to take action falls within personal law. For legal entities, the incorporating statutes prevail. Hence United States Amerindian law might be invoked, provided that the Hopi tribe is fully considered as a legal entity under such law. In another case, the Court of Appeal of Paris ruled that a tribe from Easter Island “failed to establish that it was, by reference to its own customary institutions and principles, a legal entity entitled to take action to defend collective or individual interests that it would have the special power or mission to defend, and finally, with respect to the conditions applying to its representation, it cannot be recognized as having civil personhood, […] and the indigenous group does not have the capacity to take legal action.”^{Footnote 28} As pointed out by E. Agostini in a very critical commentary, if it was not possible to identify this legal institution in foreign law, the judge should have applied French law and ruled the group’s action admissible, as did the High Court.^{Footnote 29}

In French law, the question of whether a group without legal personality can take action is an issue that would certainly arise. In reality, it is a controversial issue in the courts, and arises mostly in cases involving tribes. In a landmark 1954 decision, the Court of Cassation ruled that works committees had legal personality, even though this concept was not set out in any law, because legal personality “is not created by law” and “belongs to any group that is able to express itself collectively in order to defend licit interests which may later on be legally recognized and protected.”^{Footnote 30} According to the judge, this was implicit from the fact that the committees established by law are dedicated to managing “collective interests having the nature of rights that can be defended in justice.” In light of this reality doctrine, one could say that the Hopi tribe falls into the category of groups that express themselves collectively as they defend the interests of their ritual practices and the possession of artifacts supporting those practices. The High Court of Paris came to this conclusion in the Bunlap tribe case, ruling that the tribe was “an organised group of Melanesian origin, with religious and traditional unity, with patrimonial rights and a qualified representative in the person of its leader, and whose members [had] licit collective interests, for which the group [had] legitimate grounds to take action” (High Court of Paris, 12 March 1975).

However, this reasoning was not followed by the Court of Appeal, which ruled that groups could take legal action only if they were created by law, and in most decisions, when a group is not established by law, the right to take action is not ruled admissible.^{Footnote 31} In contrast with this trend, the Court of Appeal of Noumea (in New Caledonia) has admitted actions instituted by clans on several occasions. In one particular judgment, Melanesian clans were granted the right to take action. The Court of First Instance had ruled that they were lacking legal personality, arguing that there was no legislation on clans, contrary to the situation respecting tribes, which are protected by special laws. The Court of Appeal reversed this decision: Pursuant to Articles 4 and 5 of the Territorial Assembly’s 14 May 1980 Deliberation No. 116 on land reform, it recognized that the clan was a group governed by special local rules.^{Footnote 32} In a more significant case on the contested use of collective lands, it was judged that “for Kanak people, given the social and symbolic importance of land, a clan as possessor of land rights is the essential pillar of Kanak society; the clan is the pillar around which social life is structured” […] and “denying that the clan has legal personality would be a form of complete denial of this indigenous society as this people because if this were done, this structure, which is the only one invested with duties and thus prerogatives, would be denied the right to take action in its own defence” (Court of Appeal of Noumea, 22 August 2011, decision no. 10/531). The judges referred to the Noumea Accord according to which the Kanak identity is based on a particular relationship with land: “each individual and each clan defined itself in terms of a specific link to a valley, a hill, the sea or a river estuary and carried in its memory the acceptance of other families on its land.”^{Footnote 33} These are shining examples of the reality doctrine, but such decisions remain rare.

Beyond this first difficulty, another issue that would have arisen was the nature of the legal interest that could have been invoked by the Hopi tribe. Several arguments might have been put forward: freedom of religion on one hand and property rights on the other. Indeed, the objects belong to the Hopi tribe, and the ownership issue is most often at the heart of restitution cases. Sometimes the interest in taking legal action derives from it, both in summary proceedings and, on the merits, in the outcome of the claim. In summary proceedings, the judge may order protective measures, for instance, that the sale be suspended or that the disputed property be placed in judicial sequestration. Challenging the ownership of the masks might have justified these measures. In this particular case, the Association did not claim ownership of the objects, so, in consequence, there was no dispute on this point and the association did not show “a clear violation of an applicable law or of a general principle accepted in positive law.” Under these conditions, the judge could not order protective measures. In the Bergé case concerning the Chinese artifacts, it was also mentioned that “it is not possible to see what could […] justify these measures, when the association does not claim ownership [of the objects]” (see note 5). The court also indicated that, even though the objects were in the Chinese public domain, and inalienable as such, the association could not replace the authorized representatives of the People’s Republic of China who did not intervene in the proceedings. The current owner failed to take action and he was, according to the judges, the only one in a position to do so. Protective measures might have been ordered in response to a violation of property rights, had the owner invoked it.

If the Hopi tribe’s action had been declared admissible, granting it a potential property right might have been a problem in regard to the special nature of the claimed property, a form of collective property to which French law is generally hostile. In France, the dominant proprietary model is that of individual property, defined under Article 544 of the Civil Code. However, collective property does exist in French positive law, for example, in rural and forestry matters and in intellectual property law,^{Footnote 34} and the Court of Noumea recently admitted that a Kanak clan had a legitimate right to collective lands.

If the tribe had been allowed to take legal action as owner of the objects, would the outcome of the dispute have been different given the specific rules governing such property? United States Amerindian legislation forbids the sale of ritual objects.^{Footnote 35} If they cannot be sold, there can be no owner. According to the Hopi people, “the spirits called ‘Katsinam’ are incarnated by the masks in question, known as ‘Katsinam masks,’ which are used in sacred ceremonies and belong to the tribe but to no individual in particular.” The masks “are inalienable since they are considered by the Hopi as vectors through which the spirits of ancestors communicate with the living.” However, as we have seen, French courts—like many others—do not take foreign public law into account. For this reason, it is stated in the decision that while the American Indian Religious Freedom Act of 11 August 1978, cited by the plaintiff, recognizes that American Indians have the right to practice their religion, “no provision prohibiting the sale outside the United States of objects having been used in religious ceremonies or that could be so used is applicable in France.”^{Footnote 36}

The law of the jurisdiction in which the property is located is French, so it is the law that was applied.^{Footnote 37} In light of this, the restitution claim had hardly any chance of success given the rules governing acquisitions in good faith in France. Under Article 2276 of the Civil Code: “in matters of movables, possession is equivalent to a title.” The person who acquires something in good faith becomes the owner. This rule not only proves ownership, but it also creates it. In the event of theft or loss of the good, the true owner may claim it within three years against the possessor in good faith. After that period, the latter fully owns the good. If he or she possesses the good in bad faith, the true owner may claim it within 30 years. In consequence, the Hopi tribe has no chance of getting the masks back. Moreover, it is common knowledge that major museums hold many such objects in their collections. The only way out is thus to negotiate or rely on compassion: for example, the Joe Dassin Foundation acquired some of the [Hopi] objects to give them back their community of origin.^{Footnote 38}