Repatriation of Toi Moko - The national and international legal framework

Abstract

Māori have experienced an enormous loss of cultural and traditional values through the alienation of Toi Moko during colonial times. They now claim the return of Toi Moko from museums and institutions worldwide. The present national and international legal framework does not provide a legally sound solution for these repatriation claims. In the absence of specific legal means regarding human remains, the recourse to national legal property means is taken. Although the preserved heads can be subsumed under the notion of national property law, according to most jurisdictions an enforceable repatriation claim is not provided due to the lapse of time and difficulties in proving the unauthorised dispossession. Likewise the international cultural property law contains no legal opportunity to claim the return of Toi Moko due to the state orientated approach of most conventions and their lack of retrospectivity. Although the right to culture is a fundamental human right and indigenous collective rights in culture are promoted through the adoption of the United Nations Declaration on the Rights of Indigenous Peoples, a satisfactory legal basis for the return of Toi Moko is not provided within the international human rights framework. As a result of this uncertain legal basis, repatriation claims require alternative resolution means. Legal means in particular do not provide an adequate tool to resolve the complex of cultural, ethical and political issues involved in repatriation of Toi Moko. Repatriation claims rather require a flexible solution on a case-by-case basis which can be achieved through negotiation. Negotiation in particular enables the balance of the competing interests; the public interest of the museums and Māori cultural interest in Toi Moko.