The Nationalmuseet (National Museum) in Copenhagen announced in May 2023 that one of the five Tupinambá cloaks that are part of its ethnographic collection would be returned to Brazil after more than 300 years outside the country. The artifact, of undeniable monumental importance to the Tupinambá people and one of the most notorious objects from Brazil retained in foreign collections, is expected to be integrated into the National Museum’s collection in Rio de Janeiro by the end of 2024.[1] The restitution process was led by Rodrigo de Azeredo Santos, who was serving as the Brazilian ambassador to Denmark during the negotiations. The entire procedure was carried out in secret and appears to have been handled in a remarkably amicable manner, with the official note released by the Danish Museum expressing great satisfaction in “donating” the artifact to the National Museum in Rio de Janeiro. This victory for Brazilian cultural heritage deserves celebration and hopefully will serve as an example to foreign museums that likewise retain other nations’ artifacts.

Image 1: Tupinambá cloak at the center of diplomatic negotiations between Brazilian and Danish authorities regarding its restitution. Technique: Color photograph. Credit: Niels Erik Jehrbo, Danish National Museum.

Since the #UbirajaraBelongstoBR campaign gave unprecedented visibility to the issue of restitution of Brazilian heritage illegally exported and kept in institutions abroad (Haertel 2023a), daily news about the progress of various demands for the restitution of Brazilian artifacts circulates in national media. There are recurrent reports on the arduous obstacles faced by the people and institutions involved in the fight for the return of national heritage working concurrently in simultaneous negotiations with multiple countries. In the case of the “Ubirajara jubatus”[2] fossil, it took years of intense work, complex articulations on different levels – including the political, diplomatic, scientific, and cultural spheres – for the demand to even be considered, and its success is due, in large part, to the unprecedentedly ample support that Brazilian scientists received from civil society through social media platforms.[3] It was an arduous, democratic, and complex process, leading up to an equally praiseworthy conquest for the country.

When contrasted with the general context of the claims for the restitution of Brazilian heritage held abroad, the seemingly sudden announcement of the return of the Tupinambá cloak caused a certain surprise. The reason behind this surprise is that the negotiations were conducted entirely in secret, and neither the public nor academics and practitioners involved with other restitution demands were aware that such discussions were taking place. While it is not uncommon for similar negotiations to follow this approach, this case differed significantly from the more contentious processes observed in concomitant restitution efforts. This case highlights the significant role diplomacy can play as an Alternative Dispute Resolution (ADR) mechanism in the cultural heritage restitution arena and the importance of understanding its context and principles.

In this paper, we will explore the history and procedures leading up to the successful agreement on the restitution of one Tupinambá cloak from Denmark to Brazil, examining the role of diplomacy and ADR mechanisms in bridging the international legal gaps that often complicate the return of cultural heritage artifacts. After this brief introduction, we will contextualize the need for ADR mechanisms as diplomatic negotiations in the cultural heritage restitution field (part 1). In sequence, we will examine the origins of the Tupinambá cloak and the historical context preceding the negotiation of its restitution (part 2), followed by an analysis of the potential of diplomatic negotiations as a means for restitution of cultural heritage, as exemplified by the case under study (part 3).

Understanding the need for alternative solutions in the cultural heritage restitution field

Before exploring the intricacies of diplomatic negotiations as an ADR method, it is necessary to take a step back and discuss the main reason why alternative methods are the most commonly adopted procedures in the cultural heritage restitution field. As recurrently held in resolutions by the United Nations General Assembly and UNESCO,[4] the historical and continuing illicit trafficking in cultural property and its damage to the cultural heritage of nations is deeply concerning to the international community.

With the establishment of the United Nations Educational, Scientific and Cultural Organization (UNESCO) in 1945 and its statutory mandate on cultural matters,[5] the international community finally had an opportunity to regulate the issue of illicit trafficking at a global level and develop mechanisms to promote the repatriation of objects that had already been removed from their places of origin. In 1964, the UNESCO selected a Committee of Experts and, four years later, adopted a resolution authorizing the drafting of a convention.[6] The negotiation rounds that followed were profoundly marked by the clashes between “source” and “market” nations, namely, between States historically plundered and deprived of important artifacts integral to their cultural heritage and those where the “demand” for cultural objects exceeds the “supply” and, therefore, have historically received and retained objects from other nations (Hoffman 2009).

Some of the most heated debates on the records pertained to what would eventually become Article 7(b)(ii) of the 1970 UNESCO Convention, which provides an obligation to return cultural property illegally exported upon request of the state of origin.[7] From these discussions, a “compromise” emerged: the Convention would enshrine an obligation to return, but this obligation would only be applicable to objects imported into another State’s jurisdiction after the entry into force of the Convention (Haertel 2022). After the delegates achieved this and other relevant agreements on the treaty’s final draft,[8] the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property was adopted by UNESCO’s General Conference on November 1970 and entered into force in 1972.

It is necessary to advise that the word “compromise” must be understood with a considerable degree of caution in the context of cultural heritage disputes, as parties tend to have unequal bargaining power. “Source” nations tend to be developing States historically submitted to colonialism, occupation, or other forms of exploration, which lower their negotiating power (Chechi 2014).  The consequences of the aforementioned “compromise” were already clear upon the Convention’s adoption, as registered in statements by delegates from States historically deprived of their heritage. No hindsight was needed for them to affirm, more than 50 years ago, that the non-retroactivity of the 1970 UNESCO Convention would result in it having no meaningful effect on the issue of restitution, as all major objects of cultural significance were already held abroad (Prott and O’Keefe 1990). This factual scenario is verifiable in the Brazilian context, as the great majority of its cultural artifacts already detected abroad left the country before 1970 – as it is the case, for instance, of all eleven Tupinambá cloaks held in public collections overseas.[9]

It is worth noting that the 1970 UNESCO Convention does not explicitly state its non-retroactivity. Nonetheless, it is non-retroactive due to the lack of provisions attesting the contrary, according to the general principle under international law that treaties do not apply retroactively unless they explicitly state otherwise.[10] While Article 15 of the 1970 UNESCO Convention[11] provides that the non-retroactive application of treaties does not, in any way, legitimize transactions that have taken place before the entry into force of the Convention, it does not change the reality that the crucial provision which demands that States harboring trafficked artifacts must return them enshrined in article 7(b)(ii) has no effect upon such cases. The same weakness is reflected in other binding instruments dealing with the restitution of cultural property (Chechi 2014). This has been a major hindrance in discussing the restitution of objects removed from their places of origin a long time ago (Haertel 2022).[12]

As the 1970 UNESCO Convention did not satisfy the concerns of nations historically deprived of their heritage, the importance of having a mechanism to handle cases that originated prior to it continued to be discussed in the international arena. In 1976, a Committee of Experts previously tasked by UNESCO with studying the question recommended the creation of an international body with a mandate to facilitate bilateral negotiations for the resolution of disputes concerning displaced cultural objects (Prott 2009). Based on their conclusions, the UNESCO General Conference created, in 1978, the Intergovernmental Committee for Promoting the Return of Cultural Property to Its Countries of Origin or Its Restitution in Case of Illicit Appropriation (ICPRCP) and entrusted it with the mandate of assisting UNESCO member States in dealing with cases falling outside the scope of the existing conventions on the restitution of cultural property, potentially filling the gap generated by the non-retroactivity of the 1970 UNESCO Convention (Haertel 2022).

Once again, however, addressing the concerns voiced by “source” nations was accompanied by a caveat detrimental to their claims: the lack of temporal restraints for an intervention by the ICPRCP was compensated with its lack of jurisdictional power to rule in disputes between States (Ognibene 2019; Chechi 2014; Haertel 2022).[13] In other words, it merely acts in an advisory capacity by offering a framework for discussion and bilateral negotiations with which States are free to engage (and to refuse to do so). In a similar manner as the outcome of the negotiations leading up to the 1970 UNESCO Convention, the ICPRCP’s effectiveness as a dispute settlement mechanism for disputes emerging a long time ago.

The Tupinambá cloak and the historical context preceding the negotiation of its restitution

The Tupinambá loak subject to this study is primarily made with feathers from the “Guará” (Eudocimus ruber), a bird endemic to the Brazilian coast whose dietary habits determine the strong red color of its feathers, the most a prominent feature of the species and of the garment itself (Chade 2023). This cloak’s origin is directly linked to the spiritual context of the Tupinambá tradition that predates European occupations of the American continent. These long garments were customarily produced to be used in political assemblies, funerary rituals, and anthropophagic rituals, the most notable manifestation of this indigenous people’s culture (Tupinambá 2024), registered in reports of European explorers such as Hans Staden.[14] The cloaks were understood as a form of personification of the birds’ natural spirits and as a means for establishing a connection with spiritual entities called “Encantados” ("îkātara-eta"), spiritual guides for the Tupinambá people (Tugny et al. 2021).

Figure 2: “Dance of the Tupinambá.” Technique: Illustration. Credit: Theodore de Bry, for Navegatio in Brasilian Americae, Frankfurt, 1592.

Figure 3: “Cape”, Tupinambá coak located in the collection of the Musée du Quai Branly, in Paris (France). Technique: Color photograph. Credit: Unknown. Available at: https://www.quaibranly.fr/fr/explorer-les-collections/base/Work/action/show/notice/120614-cape. Accessed on June 27, 2024.

Figure 4: Nivalda Amaral de Jesus, 67, and Aloísio Cunha Silva, 41, observe the Tupinambá Cloak. Technique: Color photograph. Credit: Flávio Florido | Folhapress, São Paulo (2000).

After brief months during which the Tupinambá cloak that is the object of this study, was located within national territory for the Mostra do Redescobrimento, the matter of its restitution eventually disappeared from public conscience. For two decades, the garment was continuously exhibited at the Nationalmuseet, until it was seen in 2021 by the Brazilian ambassador to Denmark, Mr. Rodrigo de Azeredo Santos, upon his visit to the museum (Roxo 2023). After this first contact, the ambassador researched the object’s history and provenance,[18] confirming that it was Brazilian, and that State authorities had never presented a formal repatriation request to Denmark (Roxo 2023).

Ambassador Azeredo Santos then proceeded to mediate interactions and negotiations between the National Museum in Rio de Janeiro, Tupinambá leaders from the lands of Olivença, and the Nationalmuseet in Copenhagen. In this context, the artist and academic Glicéria Tupinambá was invited by the Nationalmuseet to visit the institution, during which she saw the cloak that would return to Brazil and the other four garments stored in the museum’s technical reserve and participated in the seminar “Different pasts – sustainable futures” (Roxo 2023).

Figure 5: Glicéria Tupinambá examines the sacred cloak at the National Museum of Denmark. Technique: Color photograph. Credit: Renata Cursio Valente | National Museum RJ.

Having established the initial connection between the museums and the Tupinambá community, ambassador Azeredo Santos collected three letters addressed to the Nationalmuseet. Two letters were written by the Tupinambá leaders Maria Valdelice Amaral de Jesus and Rosivaldo Ferreira da Silva and demonstrated the cultural and spiritual importance of the mantles. The third letter, signed by the National Museum’s director, focused on specifying the plans for the piece upon its restitution and the role it would have in the new collection (Chade 2023).

The next step was the submission of a formal request for restitution by the Brazilian National Museum. Upon receiving it, the director of the Nationalmuseet, Rane Willerslev, forwarded it to the museum’s council and obtained a favorable opinion. Equipped with their positive response, the director sent a request to the Danish Ministry of Culture, Jakob Engel-Schmidt, who finally accepted the solicitation in May 31^st, 2023, and confirmed that the cloak would be repatriated in 2024 (Roxo 2023).

Final remarks

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