The Law and Ethics Deriving from the Parthenon Marbles Case
Irini A. Stamatoudi, LLM *
Attorney
at Law
Athens
Doctoral
Researcher
University
of Leicester.
*
The author is grateful for the helpful suggestions made by Prof. Dr. M.
Stathopoulos, Professor of civil law at Athens University, during the drafting
of this article. However, the final responsibility for the text lies solely
with the author.
Copyright © 1997 Irini A. Stamatoudi.
First Published in Web Journal of Current Legal Issues in association with
Blackstone Press Ltd.
Summary
Nearly
two hundred years ago Lord Elgin removed vast amounts of Marble sculptures from
the Parthenon on the Acropolis in Athens. This removal and the subsequent
shipment of the Marbles to Britain took place in dubious circumstances. The
Marbles ended up in the British Museum where they have been on display since.
Should these important pieces of cultural heritage be returned to their country
of origin? Should they be re-united with the Acropolis site for which they were
intended and of which they form an integral part? The answer to this question
will be provided after a careful examination of all legal arguments in favour
and against the return of the Marbles to Greece as they are found in national
and international legal instruments. These arguments will be based on both
legal and ethical grounds.
Contents
1.
The applicable law
2. The legitimacy of
the acquisition of the Marbles
(a)
Whether the Ottomans had authorisation to dispose of the Marbles
(b) Whether Lord Elgin was
authorised to remove the Marbles
1. Was Elgin a
preservationist?
2. Are the Parthenon
Marbles safer in London?
3.Would the return of
the Marbles set a precedent for the denuding of the world museums?
Introduction
One
of the most interesting themes of the 20th century, in relation to the
protection of cultural heritage, is the restitution and repatriation of
cultural objects, which were taken from their country of origin, by reason of
theft and illicit exportation, or by reason of legal means, during periods of
colonisation, conquest or war.
A
significant number of these objects has already been returned to their country
of origin in response to popular demand, international initiatives and legal
pressure. Nevertheless, the case that has incurred the greatest publicity, and
which has given rise to the most interesting literature in this area, is the
Parthenon Marbles case.
This
article will examine the current debate on the return of the Parthenon Marbles
from the United Kingdom to Greece, the legal and moral implications of such a
prospect and whether there are sufficient grounds to justify their return to
their country of origin.
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I. The Background to the Case
Lord
Elgin was appointed British Ambassador to the Ottoman Empire in Constantinople
in 1799. Since 1901 and under rather ambiguous conditions, he gained access to
the Acropolis site of Athens, which was the under the Ottoman occupation, and
started to remove from there the Parthenon sculptures, hereby dismembering them
from the central temple of the site.(1) All the Marbles taken
from the most representative temple of the High Classical period of the Greek
art, were shipped to Scotland for the private use of Lord Elgin. The most
probable intended use was said to be the decoration of his country house in
Scotland. The Marbles taken by Elgin consisted of fifty slabs and two
half-slabs of the frieze and fifteen metopes. Part of them were shipped in
"Mentor" (a ship Elgin had purchased for this purpose) and sank in
deep water off Kythera. There inevitably most of the marbles were never found.
In
1816, Elgin experienced financial difficulties and decided to sell the Marbles
to the British Crown. The decision to purchase was taken by the British
Parliament in 1816 in full knowledge of the facts surrounding the acquisition
of the Marbles. Elgin was paid £35,000. Later that year the Marbles were
technically transferred as property to the Trustees of the British Museum by a
further Act of Parliament that was passed on 11 July 1816 "To Vest the
Elgin Collection of Ancient Marbles and Sculptures to the Trustees of the
British Museum for the Use of the Public". However, Britain promised to
return the Marbles as soon as Greece gained its independence from the Ottomans.
But this promise was not kept. During the 1940's Britain promised again to
return the Marbles as compensation to its wartime allies for the losses they
had incurred during the war. Nevertheless, the Marbles were still not returned
because the time was found not to be appropriate for such a decision. This
attitude was exemplified by Attlee, the Lord Privy Seal, who told the House of
Commons in 1941 that, as regards the introduction of a piece of legislation
allowing the return of the Marbles to Greece, the moment was
"inopportune".
After
the restoration of democracy in Greece, in 1975, the Minister of Culture,
Constantinos Trypanis, set up a committee for the preservation of the monuments
of the Acropolis. Henceforth requests for the return of the Parthenon Marbles
were made to Britain in order for the items taken from the Acropolis site to be
restored. However, the first official request from the Greek government was
only made in 1983 and it was delivered to the Foreign Office on 12 October by
the Greek Ambassador, Mr Kyriazides. In the request it was argued that the
Marbles should be returned to Greece, because:
"-they are an integral part of a unique building
symbolic to the Greek cultural heritage-it is now universally accepted that a
work of art belongs to the cultural context in which (and for which) it was
created, and -they were removed during a period of foreign occupation when the
Greek people had no say in the matter." (Greenfield 1989, p 83)
In
1983 a Bill was introduced to the British Parliament, which would enable the
Trustees of the British Museum to return the Marbles. The Bill was discussed
and finally defeated in the House of Lords on 27 October 1983. It was claimed
that the Marbles were well cared for in the British Museum and that the return
would set a precedent for the denuding of the world's museums. In April 1984
the Greek official request was formally declined by the British Government in a
reply that was delivered to the Greek Ambassador in London on grounds that the
Marbles were "secured" by Lord Elgin "as the result of a
transaction conducted with the recognised legitimate authority at the
time."
The
discussion was briefly re-opened in January 1996 when Lord Jenkins brought a
question before the House of Lords on whether the British Government is willing
to return the Marbles to Greece. The official position however remained
unchanged.
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II. The Law of the Case
The
issues that derive from the Parthenon Marbles case are not only based on moral
or emotional grounds, but also on principles and set questions of law. Both
parties have put forward a number of arguments, which will hereafter be
analysed in discussing the case, and assessing which party has the strongest
right to the Marbles.
1. The Applicable Law
Before
discussing the substance of the case we must first examine which is the
applicable law. The case seems to involve four possible laws each of which
could potentially be applied. The first three are the national laws of the
United Kingdom, Greece and Turkey, while the fourth is public international
law. The choice, however, between one of the aforementioned national laws does
not seem to be appropriate in the present case for the following reason. No
provisions relating to disputes about cultural heritage are provided for in the
laws of the three countries. Therefore any relevant existing rules can be
applied only by analogy and may in the present case prove inadequate. Thus,
national laws present a legal vacuum which must be superseded in order for the
case to be decided.
As
is well-known and established in the codes of the various countries and
according to the British-United States Claims Arbitral Tribunal of 1910:
"...domestic law may not contain, express rules
decisive of a particular case; but the function of jurisprudence is to resolve
the conflict of opposing rights and interests by applying, in default of any
specific provision of law, corollaries of general principles, and so to find
... the solution of the problem".
In
that context it would be teleologically fairer to use principles deriving from
the law of most civilised countries, and mainly common to the legal systems of
the United Kingdom and Greece, instead of deciding the case in the light of one
national system.
However,
in conjunction with those principles we can also use, according to art. 38(1)
of the Statute of the International Court of Justice, the general principles
deriving from international law, recognised as basic sources of it, along with
international conventions (art. 38(1)b). Disputes, such as the Parthenon
Marbles case, where nations are involved, would be better settled in an
international context and by an international judiciary. Both Greece and the
United Kingdom are Members of the United Nations. Therefore, according to
art.36(2) "may at any time declare that they recognise as compulsory ...
the jurisdiction of the Court in all legal disputes concerning ... any question
of international law" and under that article invoke the Court's jurisdiction
to arrive at a judicial settlement of the case.
At
this point, it must be stressed that, although the Conventions that will be
considered, as well as any other legal material, were not in force at the time
of the removal of the Marbles from Greece, the principles which the Conventions
enshrine and which they codified are thought to go back to the start of the
19th century. Moreover, most of the Treaties that will be considered in this
article, whether or not they have been ratified by the states at issue, by
reason of their intention to have a general effect, and the incorporation of
well-established principles, are thought to be "law-making" Treaties
(distinguished from those which merely regulate issues between a few Member
States). Therefore the rules deriving from them are considered to be general
binding rules (Shaw (1991), p 81).
As
regards the law in force at the time of the removal, we do not, unfortunately,
have access to it and accordingly the case will be examined from the aspect of
the current law.
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2. The legitimacy of the Acquisition of the Marbles
Perhaps
the most decisive and important issue to be examined is the title Lord Elgin
acquired to the Marbles. The question will be analysed in two basic parts: 1)
whether the Turks, conquerors of the Greeks at the time, had the authority to
dispose of the Marbles, and 2) whether Elgin was really authorised to remove
the Marbles and ship them to Scotland.
(a) Whether the Ottomans had the authority
to dispose of the Marbles
It
is alleged that since Greece was at the time part of the Ottoman Empire, the
Ottomans "had a solid claim to legal authority over the Parthenon because
it was public property, which the successor nation acquires on a change of
sovereignty" (O'Connell (1956), p 226). However, this public property is
transferred upon the successor nation in trust and not with the perspective of
being disposed of. According to art.5 of the Convention for the Protection of
Cultural Property in the Event of Armed Conflict (hereinafter the Hague
Convention), countries "in occupation of the whole or part of the
territory of another (State) ... shall as far as possible support the competent
national authorities of the occupied country in safeguarding and preserving its
cultural property". The Ottomans acted contrary to and in breach of such
obligation. Although the Convention was signed in 1954, the general principles
found in it, which the Convention codified, create legal obligations because of
the long-standing tradition and conduct of the States, which were also
applicable to situations before the Convention came into force.
Moreover,
the uprooting of cultural heritage is considered an illegal act of foreign
occupation and therefore condemned by international law with regard to conduct
at times of war. Art.4 of the Hague Convention provides in s.3 that the
countries must: "undertake to prohibit, prevent and if necessary put a
stop to ... any acts of vandalism directed against cultural property", as
well as to "refrain from requisitioning moveable cultural property"
situated in the territory of another State. Art.11 of the same Convention also
reads: "The export and transfer of ownership of cultural property under
compulsion arising directly or indirectly from the occupation of a country by a
foreign power shall be regarded as illicit". If these are obligations
undertaken at the time of war, one would assume that, at the time of peace,
countries are even more obliged to respect the cultural heritage of another
State, as well as the objects that are of special significance to its
nationality, history and religion.
These
latter rights are also enshrined in articles 18 and 19 of the Universal
Declaration of Human Rights of 10 December 1948, as well as in articles 9 and
10 respectively of the European Convention on Human Rights of 1950.
Specifically they provide that everyone has a right to conscience, religion and
expression. The above provisions, which, in fact, enshrine constitutional
rights of the laws of most States, are subject to a teleological and flexible approach.
Since cultural heritage contributes to the self-determination of people and to
their intellectual integrity, the disposal of someone's national patrimony, or
eradication of what constitutes his history and culture can only be a violation
of the right to his personality, religion, national and cultural identity.(2)
Apart
from the human rights' dimensions that the disposal of someone's cultural
property has, the Ottomans also had no right to dispose of the Parthenon
Marbles for one further reason. The Parthenon and the Acropolis site are the
symbol not only of Athens but of Greekness itself and this is the very reason
they constitute part of the things known in Roman law as res extra commercium.
In the Greek Civil Code (hereinafter GCC), in art. 966, these things are
defined as those "which are of common use and those destined for serving
public municipal, communal or religious purposes". Thus, the enhanced
public interest brings them into the category of "untradeable"
objects, which are not subject to any legal commercial transaction. The UK,
paradoxically, does not seem to have any relevant provisions thereon, although
there are some categories of things, e.g. public offices, which cannot be
subject to a commercial transaction. But these excluded categories are
generally those which are contrary to the standard morals rather than ones
which merely seek to exclude a number of things from all commercial
transactions. The UK has a favourable and strong attitude towards the
protection of property and this liberal approach would not permit any
derogations even in situations where cultural property is involved.
However,
this concept of "untradeable" objects is also found, although in
another context, in the 1970 Convention on the Means of Prohibiting and
Preventing the Illicit Import, Export and Transfer of Ownership of Cultural
Property (hereinafter the 1970 Unesco Convention). Art.7(b)(i) provides that
State Parties shall "prohibit the import of cultural property stolen from
a museum or a religious of secular public monument or similar
institution".
But,
even if we reverse the situation and consider Britain's attitude towards the
exportation of a similar object of such a significance to its nation, we will
observe that, although an "art-market" State, it would probably not
grant an export licence. Taking into account the criteria that should be met
(known as the Waverley criteria and found in the Report of the Committee on the
Export of Works of Art etc which is known as the Waverley Report 1952) for the
withholding of a licence (close association with Britain's history and national
life, of outstanding aesthetic importance, of outstanding significance for the
study of some particular branch of art, learning of history), the Parthenon
Marbles would have been considered "untradeable" at least for the
international market. Actually, in 1952, the Waverley committee considered the
Elgin Marbles as an example of cultural objects of outstanding aesthetic importance
for which no export licence would have been granted (see Maurice and Turnor
1992, p 280).
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(b) Whether Lord Elgin was authorised to
remove the Marbles
In
the examination of Elgin's authorisation to remove the Marbles from Parthenon,
three questions should be considered. First, whether there was, in fact, any
authorisation. Secondly, the nature of this authorisation, and lastly the
extent of the powers it conferred on Elgin.
It
is said that Lord Elgin, in order to have access to the Acropolis site,
obtained a firman (a Turkish administrative written instrument) as a result of
his request to the Sultan:
"(1) to enter freely within the walls of the
Citadel, and to draw and model with plaster the Ancient Temples there.
-(2)
to erect scaffolding and to dig where they (Elgin's working team) may wish to
discover the ancient foundations.
-(3)
liberty to take away any sculptures or inscriptions which do not interfere with
the works or walls of the Citadel." (Smith 1916, p 190)
However,
the authoritative firman for the removal of the Marbles was never found. It was
not presented either to the British Parliament in 1816, nor found in the
archives of the Turkish government, where all the documents were kept as
evidence of their content. Only an Italian translation of the firman is
available, whose origin was not precisely defined, but it is attributed to the
Reverend D P Hunt, secretary to Lord Elgin.
Yet,
even if a firman was granted, its legal nature is basically uncertain.
According to writers specialised in the Ottoman history (Sarris 1985, p
223ff.), and to the Oxford English Dictionary, a firman is "an
edict/order/decree/permit/letter from the Ottoman government addressed to one
of its officials ordering/suggesting/requesting that a favour be conferred on a
person". Firmans were held in the Ottoman Empire, in fact, to be written
permissions, which were not capable of annulling or amending the law (if the
latter was providing for something contrary to the content of the firman) and
which could not be held to constitute any kind of contract.
Moreover,
the identity of the authority that edited the firman was never confirmed. Mr
Abair, the British Ambassador who succeeded to Lord Elgin said that, on the
basis of a letter written in 1811 by Lord Elgin, he understood that the Ottoman
government "denied that the persons who had sold those Marbles to me
(Elgin) had any right to dispose of them ...".
But,
were the Marbles actually sold to Elgin? No contract of purchase was found
(given also that the firman cannot be held to constitute one), nor was any form
of consideration given to the Ottoman authorities. According to historians and
the Report on the Elgin marbles of 1816, Lord Elgin used his special office as
Ambassador and the defeat of the French in Cairo on 17 June 1801, as well as
bribery, in order to obtain what otherwise would have been impossible.
Allegations
such as "whatever the motivation (of the responsible officials) may have
been, they had the legal authority to perform those actions" (Merryman
1983, p 776) seem to carry little weight. By virtue of the well-established
principles enshrined in the laws of all the civilised countries, actions
against the morals and the public interest affect the validity of an act and
render it null. Article 178 GCC reads: "An act which is contrary to
morality shall be null and void" (See further Stathopoulos 1995, pp.
114ff.). English law is also very likely to consider such acts illegal, as they
might fall within the category of contracts through which a civil wrong is
committed. Other legal systems also adopt a similar approach. Under the German
Civil Code, in art.138, the transaction is void if it is contrary to public
policy and the Swiss Code of Obligations holds transactions, which are contra bones
mores, as invalid.
Another
issue that should be considered is the kind and extent of permission the firman
conferred on Elgin. The phrase in the firman that seems to have authorised
Elgin's massive removals of Marbles is the following, as quoted in the Report
of the Parliamentary Committee on the Elgin Marbles of 1816:
"[Elgin's working team had permission] to view,
draw and model the ancient Temples of the Idols, and the sculptures upon them
and to make excavations and to take away any stones that might appear
interesting to them" (3)
Unfortunately,
the whole text of the firman cannot be quoted here in order to attempt a
complete analysis and comparison with Elgin's initial request. Nevertheless,
the aforementioned clause has to be seen in conjunction with the third
paragraph of Elgin's request as outlined above. In that context, the firman's
contended sentence seems to have been put there rather cursorily without any
serious thought. The powers it confers on Elgin are evidently ambiguous,
whereas the Ottoman intention seems to be narrow and strict.
What
is most likely is that at the time the Ottomans could not have foreseen Elgin's
real intentions. They relied on their assumptions that Elgin basically wanted
to copy the architectural structure of Parthenon as well as make copies of its
decorations. They were probably deceived. Therefore, Lord Elgin, being surely
"the best interpreter of the instrument by which he had acted, if he
erred, he erred knowingly".(4) What the Ottoman's
actions would have been if they had realised Elgin's principle aim, is not
clear. But it is more likely that they would not permit the denuding of the
Temple and the dismantling of the sculptures, causing serious damage to the
site, given that they themselves recognised its significance and had used it in
the past as a Mosque.
From
the foregoing it follows that Elgin had exceeded the powers conferred on him by
the firman and it casts doubt on whether Elgin legitimately removed the Marbles
from the Acropolis site or stole them on his own initiative, being supported by
Turkish officials, who, by reason of their offices in Athens, could assist him
after they were bribed.
The
argument of estoppel, by reason of subsequent ratification by both Greek and
Turks, derived from the inactivity of legal authorities, which can indicate
acquiescence by implication, fails to consider two major issues. First, there
is nothing which confirms that Greek and Turks were not displeased over the
dismantling of the Marbles from the Temple, and it is unclear what the
circumstances were which prevented them from taking radical steps. On the other
hand, the local authorities of that time were not subject to any organisation
or supervisory system that would enable them to act quickly and efficiently;
nor could they understand the gravity of Elgin's act. Therefore, their
inactivity should be interpreted restrictively.
In
addition, an excess of authority on their part cannot be made legitimate by
reason of implied ratification for two basic reasons. Firstly, no ratification
by local authorities, which had no competence regarding the disposal of
national property, could have been valid. But even if they were competent, the
indifference or bad execution of public servant's duties cannot be turned
against the State itself, which entrusted them in good faith with these duties.
Secondly, implied ratification of an unlawful act is a notion alien to
international law and therefore of no legal significance (Shaw 1991).
Thus,
it follows that Elgin did not have any documentary proof of title or at least
not a valid one. Consequently, he never became the owner of the Marbles.
According to s.23 (sale under voidable title) of the Sale of Goods Act 1979
(hereinafter SOGA 1979), "when the seller of goods has a voidable title to
them, but his title has not been voided at the time of the sale, the buyer acquires
a good title to the goods, provided he buys them in good faith and without
notice of the seller's defect". To the same result provide also art.1034
in conjunction with art.1036(1) GCC, according to which the purchaser does not
become an owner, in a case where he purchases from someone, who is not the
owner himself, unless he acts in good faith.
Given
that the British Parliament before purchasing the Marbles was in full knowledge
of the facts surrounding their acquisition as well as the inability of Lord
Elgin to produce any documentary proof of title before them; and the fact that
no good faith existed, according to the Latin maxim "nemo plus juris ad
alium transferre potest quam ipse habet", enshrined in s.21(1) SOGA 1979
"where goods are sold by a person who is not their owner ... the buyer
acquires no better title to the goods than the seller had ...", the
British Government never acquired title to the Marbles, nor by extension did
the Trustees of the British Museum.
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3. Legal Consequences of the Long Passage of Time
A
second legal basis that should be considered is the long passage of time and
the effects it has on any claims of return of cultural property. From 1815
(when the last removals of the Marbles took place) until 1983 (when there was
the first official request for their return from the Greek government), 168
years have passed and therefore any rights of return have been statute-barred.
Specifically, according to s.2 Limitation Act 1980 (hereinafter LA 1980), an
action founded on tort is prescribed in "six years from the date on which
the cause of action has accrued". Article 937(1) GCC provides for five
years. However, s.4 LA 1980 reads: "The right of any person from whom a
chattel is stolen to bring an action in respect of a theft shall not be subject
to the time limits under s.2 ...". Whereas art.937(2) GCC provides only
for a longer prescription, equal to the one provided in the Greek Penal Code:
five years from the time the injured party has had knowledge of the injury and
of the person liable for compensation; or in any case for a twenty year period
after the occurrence of the act.
Moreover,
in the case where the British government is considered to be the trustee of the
Parthenon Marbles, s.21(1)(b) LA 1980 is of interest since "no period of
limitation prescribed in this Act shall apply to an action by a beneficiary
under a trust, being an action ... to recover from the trustee trust
property".
There
is, of course, the view which holds that the Parthenon Marbles are immovable
property, because they constitute an integral part of the Temple, although this
view is not strongly related to a common-law system. This notion is found in
English law under the concept of "fixtures" (objects which are
attached in a permanent way to the building and which cannot be separated from
the immovable and therefore are susceptible to any rules relating to it). The
GCC enshrines this concept in its art.953 relating to "constituent
parts", while the French Civil Code expresses it in art.526. Two English
cases that had to deal with cultural property of this kind held that a door and
a door frame that had been designed by the famous architect Adam and that had
been detached from the house, should be returned and re-installed as they
constituted an integral part of it and continued to do so after their
unauthorised removal (Phillips v Lamdin [1949] 2 KB 33). While in
Norton v Dashwood [1896] 2 Ch 497, tapestries which had been
affixed to the walls of a house for more than one hundred years were also
considered an integral part of it and therefore could not be separated without
causing damage to their context.
However,
the most interesting case, albeit a French one, is Ville de Genève et
Fondation Abegg v Consorts Margail D 1985.208 where it was held that
the frescoes detached from a building and sold outside the country remained
immovables even after their detachment, and therefore they were subject to the
rules relating to immovables. This case and its outcome present strong
similarities with the English Phillips v Lamdin case.
The
real issue about fixtures is whether these items have become part of the
building. If any chattel is affixed definitively to a building as part of the
overall and permanent architectural scheme that will be the case. The building
with the fixtures incorporated in it is then treated as a single immovable
item. Carved oak wall panels and balustrading to the staircase were considered
to be fixtures as defined above in Corthorn Land & Timber Company Ltd
v The Minister of Housing and Another (1965) LGR 490. Modern English law
protects such fixtures along with any listed building under s.1(5) Planning
(Listed Buildings and Conservation Areas) Act 1990. Any removal of such
fixtures is an offence, whether or not the person removing them realised that
they were fixtures attached to a listed building or not. The offence is one of
strict liability and no mens rea needs to be demonstrated. The decision
in R v Wells Street Metropolitan Stipendiary Magistrate, ex parte
Westminster City Council [1986] 3 All ER 4; [1986] 1 WLR 1046, does not
allow for any other conclusion. And as long as a reasonable percentage of the
material which formed part of the unlawfully demolished building (70 to 80 per
cent of a listed barn in the case at issue, R v Leominster District
Council, ex parte Antique Country Buildings Ltd and Others and Scott and
Others v Secretary of State for the Environment and Another (1988)
56 P&CR 240; (1988) 2 PLR 23; (1988) JPL 554) remains available the
appropriate sanction is the restoration of the building. Fixtures which have
been detached from the building can only be treated again as chattels if they
have been detached lawfully. Any other conclusion would be wrong because it
would favour the offender who took fast and radical action to destroy the
building and its architectural scheme. The argument advanced by Hoffman J which
was quoted in R v Leominster District Council, ex parte Antique
Country Buildings Ltd and Others and Scott and Others v Secretary
of State for the Environment and Another that the remaining pieces of a
wrongfully demolished building are still a building for legal purposes applies
here by analogy.
If
we continue our application by analogy and consider the Elgin Marbles case in
the light of the current English law the outcome is rather straightforward,
albeit obviously not legally binding. The Marbles are an integral part of the
Temple building and must be considered as fixtures. Their removal can, in the
light of the evidence, hardly be considered to be entirely lawful. The
intentions and motives of the parties involved are without relevance. The only
outcome can be the restoration of the Temple to its original state. This
presents, at the very least, a strong moral argument for the return of the
Marbles to Greece. What is the mandatory solution for any listed building in
England, must clearly also be the appropriate solution for one of the world's
unique pieces of architectural heritage.
Or
do we operate a dual standard when on the one hand returning the Stone of Scone
to Scotland, after having taken it in the 13th century in circumstances which
were definitely not as doubtful as those in which Lord Elgin acquired the
Marbles, while on the other hand retaining the Parthenon Marbles in London? If
all time limitations could be ignored in the former case and moral arguments
were allowed to take the higher ground in the absence of an cast iron legal
case favouring either side, surely the same should apply in the case of the
Marbles, even if cynics would add that in Athens there are no votes to be won
by British politicians.
Section
15 LA 1980 provides in cases relating to immovable for a limitation period of
12 years while art.249 GCC provides for a 20 years period. Nevertheless, both
the English statute, in s.28(1) and the Greek law in art.255 provide that this
time limitation is suspended in case of force majeure. English law provides
more specifically for an "extension of limitation period in case of
disability". If in the period, where someone is entitled to raise an
action certain events take place, which make it impossible for him to claim his
rights, the statutory limitation periods are suspended. Since 1830, when Greece
became an independent State and until the final restoration of democracy, it
has had to face five wars and two dictatorships. Thus, it was by analogy unable
to claim back cultural property when more pressing problems had to be given
priority.
Nevertheless,
even apart from any provisions in national law, international law does not
recognise any statutory limitation periods. Consequently, any rights of return
can still be claimed since national law cannot prescribe any rights in
international law (see Shaw 1991). Moreover the Hague Convention as well as the
1970 Unesco Convention have no provision on prescription. ICOM, the
International Council of Museums, also made clear that "in no event shall
the State, which holds the cultural property in question, be able to invoke any
statutes of limitation" (Venice Committee, Unesco Doc.
SHC-76/CONF.615/5,5). In that light, because of the special interest and bonds
of people to their cultural heritage, many cases have been settled,
irrespectively of time limits, including the case concerning the Manuscripts
taken from the library at Heidelberg in 1622 (Nahlik 1983, p 12).
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4. Restitution and return of the Marbles
According
to art.2 of Directive 93/7/EEC of 15 March 1993 ((1983) OJ L 74, 27.03.1993, p
74) cultural objects unlawfully removed from the territory of a Member State
"shall be returned in accordance with the procedure and in the
circumstances provided for in this Directive". Art.7(b)(ii) of the 1970
Unesco Convention, also, comes in support of this obligation. Specifically it
provides that: the Parties at this Convention undertake "at the request of
the State Party of origin, to take appropriate steps to recover and return any
such cultural property". Also the most recent international legal
instrument in the area of cultural property, the 1995 Unidroit Convention on
stolen or illegally exported cultural objects (hereinafter the Unidroit
Convention) provides in art.3(1) that "the possessor of a cultural object
which has been stolen shall return it"; while in relation to illegally
exported cultural objects it provides in art.5(1) that "a contracting state
may request the court or other competent authority of another contracting state
to order the return of a cultural object illegally exported from the territory
of the requesting state". One needs to add though that the international
legal instruments referred to above do not cover claims before their entrance
in force. Thus, in this article they are considered from a general principles
point of view.
Therefore,
given that the Marbles have been illicitly exported from the Greek territory,
the British Museum is obliged to return them to their country of origin
according to the principles deriving from the European Directive and the
International Conventions. "The principle of physical return of cultural
property is, through increasing State and Institutional practice, becoming a
custom of international law" (Greenfield 1989, p 104); and rules of
customary law may become an overriding principle of international law known as
"ius cogens" (see e.g. Brownlie 1990, p 512ff.).
However,
the same issue has already been the subject of close scrutiny at the Unesco
World Conference on Cultural Policies, which was attended by Ministers of
Culture in Mexico in 1982. The Conference has published Recommendation No.55,
which reads as follows:
"Recalling resolution 4/09 adopted by the
General Conference of Unesco at its twenty-first session, on the return of
cultural property to its countries of origin,
Recalling the recommendations adopted by the
Intergovernmental Committee for Promoting the Return of Cultural Property to
its Countries of Origin or its Restitution in Case of Illicit Appropriation at
its second session (Paris, 14-18 September 1981).
Considering that the removal of the so-called Elgin
marbles from their place in the Parthenon has disfigured a unique monument
which is a symbol of eternal significance for the Greek people and for the
whole world,
Considering it right and just that those Marbles
should be returned to Greece, the country in which they were created, for
reincorporation in the architectural structure of which they formed part,
1.
Recommends that Member States view the return of the Parthenon Marbles
as an instance of the application of the principle that elements abstracted
from national monuments should be returned to those monuments;
2.
Recommends that the Director-General give his full support to this
action which comes properly under the heading of the safeguarding of the
cultural heritage of mankind".
If
this Recommendation is taken up Britain might have a claim for compensation if
the Parthenon Marbles are returned. Art.7 of the 1970 Unesco Convention in
s.7(b)(ii) provides that "the requesting State shall pay just compensation
to an innocent purchaser or to a person who has a valid title to that
property". Articles 3(3) and 6(1) of the Unidroit Convention contain a
similar solution. However, it has become clear so far that Britain was neither
an innocent purchaser acting in good faith nor does it have a valid title given
the questionable acquisition of the Marbles by Elgin.
Nevertheless,
Britain can claim as a bailee the costs of the preservation of the Marbles. The
preservation of cultural antiquities is very costly and few museums can afford
to give away objects in which they have invested time and money. However,
Britain has, in fact, been compensated in two ways. First, it has been
compensated in natura by the number of tourists who have visited London
over the last 180 years to see the Marbles and secondly, by setting off its claims
against Greece's claim for the demolition of the Parthenon Temple.
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III. The Ethics of the Case
The
moral issues deriving from the Parthenon Marbles case have to be considered at
this stage, not only because they represent some very interesting points, but
also because they carry weight both in national and to an even larger extent in
international law. In international law they can justify the return of the
Marbles when being considered as an independent basis, apart from any claims at
national level.
1. Was Lord Elgin a Preservationist?
The
British have occasionally set out various reasons to justify their insistence
on the Marbles staying in Britain. The first reason to be mentioned is that
England succeeded in preserving the Parthenon Marbles in a period where the
antiquities in Greece were in danger because of the war or because of the
ignorance of certain people. Therefore Elgin acted in the spirit of a
preservationist rather than in the spirit of someone who is only pursuing his
own profit.
The
retention of the Parthenon Marbles on such grounds is unjustifiable. This is so
firstly, because the question why the Marbles that were left on Parthenon did
not suffer any damage receives no satisfactory answer. And secondly, because,
although Elgin did spend much of his fortune removing the Marbles from the
Parthenon and shipping them to Scotland, he had no intention of either
preserving the Marbles for the Greeks or of making them a gift to the British
State. If Elgin had been altruistic and had merely taken the Marbles out of danger,
the logical conclusion would be that the antiquities should be returned to
Greece now that the reasons of their initial removal no longer exist.
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2. Are the Parthenon Marbles Safer in London?
Safety
is no longer an issue since after their return to Greece the Parthenon Marbles
will not be exposed to the open air natural environment, but they will be
housed at the Acropolis Museum, where they can be preserved in the best
possible way.
The
ornaments, friezes, metopes, and pediments will be in their architectural
context when placed in the Athens Museum, although they will still be displayed
in a museum, whereas in the British Museum they are not being displayed in
their authentic setting. Such an approach is fully in line with the recommendation
that "there is deep-rooted and indissoluble bond between nature, man and
his artistic creations" (Zaire, UNGA (XXX) Explanatory Memorandum
A/9199,2). The Marbles are an integral part of the Parthenon Temple itself, so,
seeing them in conjunction with the Temple is essential for a better
understanding and assessment of these pieces of art. Dissociated from the rest
they lose most of their meaning, mystique and significance.
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3. Would the Return of the Marbles Set a Precedent for the Denuding of the
World Museums?
This
argument seems to fail to distinguish between the particularities some cases
present. Debates on cultural property should always be subject to a
case-by-case approach, so that strong petitions which are well-founded as the
Parthenon Marbles one, can be separated from the ones that are weak and
unjustified as for example items of lesser significance which can be found in
large numbers so as not to constitute irreplaceable pieces of art which are of
priceless national significance and form the symbol for a nation and a culture.
Greece's claim is particularly strong. Mainly, because the Parthenon is a
unique piece of cultural heritage of great architectural, philosophical and
historical significance. Therefore its integrity should be supported. And
secondly, because the idea of the Parthenon was conceived and realised by Greek
sculptors in Athens, where the Temple still remains in recognisable form while
the partial damage is due to Elgin's massive removals.
However,
the Parthenon Marbles case was not the first one to be considered. Many
antiquities have found their way back to their country of origin. In 1948, the
Wright Brothers' Kittyhawk aircraft was returned to the United States from
London's Science Museum. In 1962 the University Museum of Archaeology and
Anthropology at Cambridge returned cultural objects to the Kabaka of Uganda.
The Ethiopian Manuscripts were returned in 1872 and in early 1930s Ceylon took
back the shrine, sceptre and orb of the last King of Kandy. Did these cases and
numerous others change the flow of history or did they upset the international
status quo?
In
addition, given that the legitimacy of the acquisition of the Marbles is
questionable, their return would not merely constitute an act of good will by
Britain, but it would also be in compliance with the world-wide approved ethics
of no retention of cultural material whose legitimacy is ambiguous. Art.3(2) of
the ICOM Code of Professional Ethics of 1986 states: "A Museum should not
acquire whether by purchase, gift, bequest or exchange, any object unless ...
(it is) satisfied that it can acquire a valid title to the object in question
and that in particular it has not been acquired in, exported from, its country
of origin ... in violation of that country's laws".
Lastly,
arguments against the return of cultural objects on grounds of alleged
nationalism (Merryman 1983, p 785) are devoid of substance. It is doubtful
whether in that light Britain would be willing to dispose of Big Ben,
Westminster Abbey, Shakespeare's own manuscripts if these are ever found or
America of its Statue of Liberty. In his article Merryman seems to confuse the
notion of "cultural internationalism" with that of "cultural
imperialism", and, after all, as O'Keefe and Prott point out in a
characteristic way, "there is something equally nationalistic in the view
that a particular ... State is an especially appropriate custodian of other
people's material culture, irrespective of their laws and their views"
(O'Keefe and Prott 1989, p 470.).
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Conclusion
In
this article the law and the ethics of the Parthenon Marbles case have been
analysed, showing the complexity of the issues involved. Both parties have
interesting points and arguments to make, but evidently any solution has to
favour just one of them. The two basic arguments of the retentionists regarding
Britain's title of possession and the passage of time have proved to be weak
and they are therefore unconvincing. On the side of morality based arguments it
has also been concluded that preservation and safety are no longer viable
arguments since Greece is able to provide both. However, these arguments were
once more presented by the British government as a response to Lord Jenkins'
question and plea for the return of the Parthenon Marbles when it was brought
before the House of Lords. On 18 January 1996 this discussion took place and
the same ethical issues, as the ones that were rebutted in this article, were
raised. In spite of the flimsiness of these arguments the British government
made it clear that it had no intention of returning the Marbles.
Nevertheless,
the Parthenon Marbles case is not only a legal and moral one, but it also
touches the heart of the Greek nation. Characteristic in this respect are the
words of the former Greek Minister of Culture, Melina Mercouri:
"This is our history ..." (San Francisco
Chronicle, 26 May 1983, p 26)
"(T)hey
are the symbol and the blood and the soul of Greek people ... (W)e have fought
and died for the Parthenon and the Acropolis ... (W)hen we are born, they talk
to us about all this great history that makes Greekness ... (T)his is the most
beautiful, the most impressive, the most monumental building in all Europe
..." (New York Times, 4 March 1984, p 9).
Even
J H Merryman agrees that "if the matter were to be decided on the basis of
direct emotional appeal, the Marbles would go back to Greece tomorrow"
(Merryman 1983, p 759). As has been shown above even if the matter were to be
decided on the more tangible grounds of law, Greece would still have a strong
case. And after all, law cannot be considered in isolation. If it is to fulfil
its natural role it has to be blended in with the realities and the real life
in which it finds its roots and from which it is destined to be an emanation.
Bibliography
Brownlie,
I (1990), Principles of Public International Law, 4th ed (Oxford:
Clarendon Press).
Greenfield,
J (1989) The Return of Cultural Treasures (Cambridge: Cambridge
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Maurice,
C and Turnor, R (1992) 'The export licensing rules in the UK and the Waverley
criteria' 1 IJCP 273.
Merryman,
J (1983) 'Thinking about the Elgin Marbles' 15 New York University Journal
of International Law & Politics 757.
Nahlik,
E (1983) "The problem of the international protection of works of art in
time of peace" New York State Historical Association Acquisition and
Deaccession Policy, History News 12.
O'Connell,
D (1956) The Law of State Succession.
O'Keefe,
P and Prott, L (1989) Law and the Cultural Heritage (London:
Butterworths) vol.3.
Sarris,
N (1985) The Osmanic Reality (Athens: Arsenidis) t.II.
Shaw,
M (1991) International Law, 3rd ed (Cambridge: Grotius Publications).
Smith
(1916) 'Lord Elgin and his collection' 36 Hellenic Studies 163.
Stathopoulos,
M (1995) Contract Law in Hellas (Deventer and Athens: Kluwer/Sakkoulas).
Footnotes
(1) The Parthenon is the central
building of the Acropolis of Athens. It is the most representative temple of
the High Classical period of the Greek art. It was built in 488 B.C., during
the Golden Century of Pericles (famous statesman at the period of Athenian
Democracy), by the architects and sculptors Phidias and Ictinus. It was a temple
in Doric style which succeeded in a unique way to combine optimism, quality,
symmetry and simplicity. The whole work took sixteen years to be completed. The
basic material used for its construction was Pentelican Marble. The pillars
were made of marble as well as the sculptures which decorate it. There were no
separate decorations attached to it. The pillars, the pediments, the frieze and
the metopes were an integral part of the whole structure and the ornaments were
sculptured on them. Back to
text.
(2) It is worth mentioning here
that the denuding of one of the most important cultural sites of the world by
Elgin lead the French to associate his name with a form of cultural vandalism
(Elginisme). Back to text.
(3) Quoted from the translation of
the Italian text which Dr Hunt submitted to the 1816 Parliamentary Committee. Back to text.
(4) See Mr Best's speech in the
June debate of the Parliamentary Committee on the purchase of the Marbles. Back to text.