Case Study of Elgin Marbles and Cultural Property Ownership Debates

A case study of Elgin Marbles and cultural property ownership debates

“This is our history; this is our soul” (Melina Mercouri)

Introduction:

The term “cultural property” represents properties of immeasurable values and prestige attached to a certain culture, and by culture we mean “accumulated knowledge, beliefs, artistic achievements, laws and customs that represent human civilization at its best”. Cultural property has become an essential element for modification and progressive development in international law that implemented measures to protect properties in the events of armed conflicts as per article 1 of the Hague convention[1] and combat illegal traffic of mobile cultural objects. For an object to qualify as cultural property in legal terms, it must match one of the 11 categories laid out in article 1 of the UNESCO convention[2] and shall be preserved by statutes. Whether it is archaeological, ethnological or historical, these items/ properties hold a profound irreplaceable significance which makes claims over their ownership a long-lasting competition between states. The debate over the Elgin marbles, a collection of marble statues and figures taken by Lord Elgin of Britain in the early 19^th century from Greece, caught the attention of international communities and went far beyond the borders of the United Kingdom and Greece. I will start this essay by giving a brief background to the history of Elgin marbles acquisition, then further analyse the complexity of cultural property debates that followed the Elgin Marbles case, arguments for and against repatriation, reasons why arguments to return the marbles to Greece failed, and The European court of human rights perspective on the situation.

The Acquisition of Elgin Marbles; Rewind to the 19^th century

A British lord in the very early 1800s moved much of the Parthenon collection of marble inscriptions and sculptures to England. These sculptures went through a tumultuous journey of being transported all the way to Britain by sea, where one the ships sank and later discovered by Greek fishermen. However, the remainder of the shipments found their way safely to England. Placed in the British museum ever since and named after their exporter, the Elgin marbles attracted the world’s attention and caused a spark of international controversy. These precious marbles that the Greeks wish to see returned to Acropolis[3] are in fact representative of the Athenian mindset in the 5^th century BC which is a classical and one of the most influential periods in the history of ancient Greece. Following a parliamentary committee, these objects were purchased from Lord Elgin and presented them to the British museum based on the legality of the Lord’s actions of shipping them to Britain. As for today, the British museum in total owns approximately half of what survives of the Parthenon which includes half of the frieze,15 metopes of 92, and 17 pieces from the pediments[4] that artistically depict the national identity cultural heritage and myths of Athens.

The legality of the Elgin marbles removal; official ownership debates

Since Britain claimed ownership of the Parthenon sculptures, the government never considered returning them to their homeland arguing that they are better preserved in their current home, England, and more accessible than they would be in Greece that cannot provide the same level of security. ‘The question has been reopened on an average of every five years’, said the author of Lord Elgin and the Marbles, Willian St Clair, who wrote on the systematic debates that have been going on since 1890 amongst successive governments.

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The first official request made by the Greek government for the return of the displaced sculptures was in 1983 led by the Minister of culture Melina Mercouri which was subsequently turned down by the British government in 1984 despite the support within the United Kingdom for the interest of the Greeks. Minister Mercouri didn’t rest her case and continued her campaign outside the British committee for the restitution of the marbles[5] in England with great eloquence and power fighting for the return of the marbles to their rightful land.

“They are the symbol and the blood and the soul of the Greek people. we have died and fought for the Parthenon and acropolis. This is the most beautiful, the most impressive, the most monumental building in all Europe and one of the seven miracles of the world” added Mercouri. Although it is difficult to reject her argument and dismiss her words, such disputes can’t settle based on emotional appeal, otherwise the marbles would have been back in Greece upon the first official reunification request.

From a Greek perspective, there are four main points that support their legal ownership right

1. The monument to which the sculptures belong to is in Athens and therefore it is an integral part of the Greek culture
2. The missing pieces Britain possesses would complete the image of the temple in acropolis like it was supposed to look
3. The sculptures symbolise national heritage, and Greece is the rightful place for such significant items to be displayed
4. The marbles were acquired illegally and taken during the ottoman occupation, meaning that the Greek people didn’t consent to such invalid deal

There is, of course, an opposing British perspective denying the alleged illegality of their ownership of the marbles and claims supporting this retention. According to government’s records, the marbles were shipped legitimately per the sultan’s firman[6] who also commanded the Athenian authorities to allow the shipment. Therefore, Britain’s entitlement to the ownership can’t be denied under international law. Whether or not Greek officials deem this illegal, 150 years had elapsed since Greece gained independence pursuing no action until 1983 when Greece insisted on the ownership, adds the British government. Second, returning the marbles would facilitate the way for chaos across the world by creating a precedent for the “universal removal of major acquisitions of the world’s museums”, which will undermine the role of museums and “increase the demands for repatriation of other artefacts”[7]. The main reason for the United kingdom’s refusal to resolve the dispute is to avoid initiating a precedent for further demands of a similar kind. Britain has also been holding onto the assertion that the marbles are better preserved in the museum, which is equipped to sustain conditions beneficial to protecting cultural properties, than they would be in the Greek temple where it originated from. One more popular claim, which I believe is absurd, is that these sculptures have been homed in the United Kingdom for over a century and became an inseparable part of the British heritage. Anyhow, while it is undeniable that the marbles are Greek in origin, the level of attention paid to the Elgin marbles is incomparable to the other disowned pieces scattered in museums all over the world which downplays the national pride argument the Greeks proclaim. In a British point of view, economic factors in this debate outweigh the national pride claim as assembling these marbles back in the temple will boost the country’s tourism. Truth is, a discussion based on an economic value will bring back questions of property law that Britain had sorted out before to its favour. Lastly, it is not possible for the marbles to be reinstalled on the temple since this would profoundly damage the pieces and disintegrate these phenomenal pieces of art. This argument is flawed, as the Greek government never came with a similar restoration proposal, but instead, they wish to display the marbles in a museum near acropolis placing them as close as possible to Parthenon.

Refutations to the British ownership allegations; [8]

The legality of the marbles’ acquisition will always be in doubt even with the proof of the Sultan’s firman. The document obtained by Lord Elgin, issued in Italian, is still debated to this day in terms of the exact translation of the original permit and the applicability of the terms as per the firman on the ground

The document after being translated to English[9] reads “It is incumbent on us to provide that they [i.e. Elgin’s party] meet no opposition in walking, viewing, or contemplating the pictures and buildings they may wish to design or copy; and in any of their works of fixing scaffolding … around the ancient Temple of the Idols, or in modelling with chalk or gypsum the said ornaments and visible figures … or in excavating when they find it necessary the foundations in search of inscriptions among the rubbish; that they be not molested by the said Disdar nor by any other persons.”

The ambiguity of the language tends to question if lord Elgin abused the authority given to him and if he misinterpreted the clauses of the written firman. In addition, Professor Vassilis Dimitriadis[10] claims that the document was missing the Sultan’s “emblem” and “invocation to god” meaning that both missing elements invalidate the document.

There is also no hard evidence suggesting that the British museum would create a precedent should the Parthenon marbles be returned to their home. Indeed, some items have been returned by museums and no such hassle was created. For example, Mexico was able to recover two 3000-year-old items from Germany, as well as the united states government that returned archaeological objects to Italy and Libya in 2017 and 2018 respectively[11](more cases of the return of cultural objects can be found of the UNESCO’s official page). Museums of all “ex colonists” are subject to international treaties and legally binding agreement safeguarding cultural property like the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects.

Legal Protections; applying the laws

The attitude towards repatriation has significantly increased over the past decades and shifted more towards cultural nationalism[12]. Article 1 of directive 2014/60/EU of the European parliament and of the council states holds  “This Directive applies to the return of cultural objects classified or defined by a Member State as being among national treasures, as referred to in point (1) of Article 2, which have been unlawfully removed from the territory of that Member State “, article 2 states what  “unlawfully removed from the territory of a Member State” means. Similarly, article 7 b(ii) of the UNESCO 1970 convention supports this state obligation, especially that it clearly provides parties to abide by the convention and “at the request of the State Party of origin, to take appropriate steps to recover and return any such cultural property”. In addition, the most recent international treaty concerning the concept of cultural property, the 1995 UNIDROIT Convention on stolen or illegally exported cultural objects, reveals in article 3(1) “the possessor of a cultural object which has been stolen shall return it” whereas in respect to illegally exported cultural objects the convention states in article 5(1) “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”. It is important to acknowledge that the above legal instruments dealing with cultural property issues do not cover any chains made before their enactment.

Applying these laws to the Elgin marbles case is a lot more complicated than it seems, as these legal instruments binding on all member states, they came into force only after 1954. Although the 1995 UNIDROIT convention obliges states to return illegally obtained cultural objects, states affiliated must make a claim within 3 years of learning the location of the displaced items and not after 50 years of the alleged theft. Given the facts of this case indicate that the 5 decades limit is overdue and the legitimacy of the sultans firman will always be a vague issue with the loss of the original document written in Italian. Unfortunately, none of the treaties provided for in international law can tackle the ongoing clash regarding legal ownership between Greece and the United Kingdom due to the lack of credible evidence in the Greeks’ favour.

European court of human rights and the case of Elgin marbles; A detailed Analysis

A while after the United Kingdom’s government and the British museum refusal of the mediation proposal[13] by the UNESCO in early 2015, a group of Greek campaigners named the “Athenians association[14]” decided to bring the case before the European court of human rights seeking the return of the marbles. The claim against the United Kingdom pointed out the following violations under the European conventions of human rights[15]

1. Article 8 ECHR (the right to respect of private life) in terms of cultural identity
2. Article 9 ECHR (Freedom of conscience) with respect to cultural identity as well
3. Article 10 ECHR (Freedom of expression) where the UK allegedly denied the Greeks access to cultural information
4. Article 13 (Right to access and effective remedy)
5. Protocol 1, Article 1: Protection of property in sense of access to the cultural objects

At the outset, it is essential to know that this case was filed by a private association not linked with the state of Greece, and that the European Court of Human rights mostly deals with cases brought by individuals against their own country. For a case to proceed to the hearing stage, it must fulfil often rigorous admissibility requirements otherwise the court can turn down any application on grounds of incompatibility with the provisions and protocols of the convention if deemed ratione temporis and ratione materiae inadmissible.

With regards to Ratione temporis, “the Convention is not binding on the State in relation to any act or fact which took place before the Convention came into force (1953) unless there is a continuing violation which originated before that date and still persists” (George Vardas, 2016). Although it was ruled that this cased lacked temporal jurisdiction since the act of exportation occurred before the UK ratified the convention, the court did appear to validate the possibility that there has been a violation since Lord Elgin brought back the marbles until this day. The European Court of Human rights has given an extended jurisdiction in other landmark cases regarding the right of property such as Papamichalopoulos v Greece (1993)[16] concerning the illegitimate occupation of the claimant’s land, and Loizidou v. Turkey (1996)[17]where the applicant, a Greek Cypriot woman, was denied access to her property by Turkish forces. The other inadmissibility ground ratione materiae, known as subject matter jurisdiction, refers to the court’s discretion to rule on a particular case by considering the “nature of the case” and the “type of remedy sought”, thus the court has the authority to throw away cases claiming rights that aren’t provided for in the convention. In this case, the court wasn’t entirely satisfied that a private association had the right to allegedly represent a group of victims who demanded the return of their cultural property.

The European court of human rights ruled[18] “it is clear from the nature of the applicant’s complaints that its underlying grievance is the allegedly unlawful removal of the marbles from Greece. The removal having occurred some 150 years before the Convention was drafted and ratified by the respondent state, the applicant’s complaints would appear to be inadmissible”[19]. Regardless of the Court’s judgement, the association won’t stop, and this was only the first step, according to its legal representative Vassilis Sotiropoulos. He also added that the decision wasn’t in their favour, yet it might help the Greek government with any legal action it decides to bring with Greece being an admissible applicant that will receive further assistant on how to approach this case henceforth.

Proposed solutions to settle the cultural war between the Greeks and the British

It wasn’t a long time ago when the director of the British museum, Hartwig Fischer, faced an unprecedented backlash against his statement earlier this year calling the acquisition of sculptures and other historical items from different origins “a creative act” or what the outraged media rephrased as “stealing art is creative”.Dr Florian Schmidt-Gabain, a lawyer and the president of Centre for Artistic Estates, suggested an easier solution that might please both parties: a 50:50 share. While this solution might spark another argument over who gets what and what museum would return to Greece, it is yet a resolvable quarrel that shouldn’t prolong nor cause further chaos. Fortunately, the marbles consist of only major pieces which us a unique situation that would back up the situation unlike the rest of restitution cases where sharing would never work. He also added that facsimiles could also be if either state wishes to put the entire collection on display rather than half a set, under the supervision and aid of the European union of course. A similar interpretation was adapted in 2006 to end a disagreement that dates to 1712 between Zurich and St Gallen after the invasion of Zurich troops in the St Gallen’s abbey library and stealing a collection of valuable rare books besides an unusually sized globe that the library demanded their return ever since. Eventually, both sides came to an agreement and decided on the return of the rarest book to the library, keeping 40 books on loan from St Gallen for a minimum four decades, and transferring the globe from museum of the canton to the swiss national museum.

The director of the British museum also expressed his frustration with the situation and disagreed with the arising claims of Greece’s legitimate ownership of the marbles. “The objects in the collection of the British Museum are owned by the museum’s trustees” he said. David Fischer’s statements aren’t surprising nor new, keeping in mind that the directors of the museum and the British government have been reaffirming their legal title ever since 1980. Legally speaking, the British legal title, as I discussed previously, stems from the original ottoman firman and not Elgin’s when he brought the objects back, however the British museum’s trustee’s title derives from a parliamentary act in 1816 when the parliament purchased the marbles from Lord Elgin for £35K.

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Once again, the recognition of the legal title seems to be one of the main reasons a settlement fails to be achieved. David Fischer also reiterated that even if the British museum was to take a step forward and offers Greece a long term loan of the pieces, such initiative would be faced with a quick refusal since the Greek government will most likely refuse to accept that the title belongs to Britain, an acceptance that not a single successive Greek government was able to do willingly. Alexander Herman, an assistant Director of the Institute of Art and Law, advised that perhaps Greece should only accept the idea that the trustees hold the title strictly under English law, leaving the circumstances of the acquisition aside. Equally, the British museum should be more open to establishing that their legal ownership is a nationally derived right and doesn’t necessarily mean it is guaranteed on an international level. This might allow both states to take a break from the title debate.

Although the prospect of a loan from the Marbles collection to Athens might appear discouraging to the director of the British museum, there are measures to be implemented to avoid any unwanted scenario. For instance, the United Kingdom could request Greece to lend the museum certain pieces from its collection while the Parthenon marbles are on display in the new acropolis museum just like Italy’s successful quid pro quo[20] offer in 2006 when New York’s Metropolitan Museum sent back some pieces. Moreover, passing an “anti-seizure” law, to be adopted by the Greek government, would categorically serve the purpose of the reciprocal loan, and eliminate the slightest fear of an item confiscation during the loan period. The United Kingdom has a precedent in 2007 when a similar law was passed to safeguard items on loan from Russia to Somerset house.

Conclusion

In every cultural property debate, right to ownership always remains a stumbling block.  While the position of Greece is understandable from a cultural and emotional perspective, especially with the legality of the marbles’ shipment being in doubt, it is nonetheless difficult to refute their stay in the British museum on grounds of binding international treaties. With the case not falling within the European court of human right’s temporal jurisdiction, I must say that both countries must move beyond questioning the wrongness of the removal of the marbles in 1801 and focus more on accepting a solution that would finally put one of the most controversial debates in Europe to an end. I believe the debates are still thriving and several resolutions suggested by academic and lawyers have been brought to the table, yet it is in the hands of both governments to stop holding onto the same claims of ownership and turn this case into a landmark one.

REFRENCES:

1. Herman A, ‘Athenian Group Brings Human Rights Claim For Return Of Parthenon Sculptures’ (Institute of Art and Law, 2016) <https://ial.uk.com/athenian-group-brings-human-rights-claim-for-return-of-parthenon-sculptures/> accessed 3 August 2019
2. Johnston T, ‘Bid To Force Britain To Return The Elgin Marbles To Greece Thrown Out Of Court’ (The Independent, 2016) <https://www.independent.co.uk/news/uk/home-news/elgin-marbles-return-greece-legal-bid-thrown-out-eu-court-human-rights-a7145216.html> accessed 4 August 2019
3. Poula V, ‘Issue 9 – Long-Braided Maidens Gazing From The Acropolis To Russell Square’ (La Piccioletta Barca, 2019) <https://www.picciolettabarca.com/all-pieces/vp01-xawxb-5c2wm> accessed 1 August 2019
4. Stamatoudi I, ‘Legal And Ethical Issues’ (Parthenon.newmentor.net, 1997) <http://www.parthenon.newmentor.net/legal.htm> accessed 29 July 2019
5. ‘Text Of The Convention | United Nations Educational, Scientific And Cultural Organization’ (Unesco.org, 2017) <http://www.unesco.org/new/en/culture/themes/illicit-trafficking-of-cultural-property/1970-convention/text-of-the-convention/> accessed 31 July 2019
6. Stamatoudi I, ‘Legal Grounds For The Return Of The Parthenon Marbles’ (Helleniclink.org, 2003) <http://helleniclink.org/wp-content/docs/legal.htm> accessed 1 August 2019
7. Francioni F, ‘The Human Dimension Of International Cultural Heritage Law: An Introduction’ (2011) 22 European Journal of international law
8. Zeman A, A Game Changer? The Complexities Of Cultural Heritage In The Debate Over The Elgin Marbles (Vasar College 2012) <https://digitalwindow.vassar.edu/cgi/viewcontent.cgi?article=1066&context=senior_capstone> accessed 29 July 2019
9. ‘Michigan Law Review’ (1985) 83 Thinking about the Elgin Marbles
10. Stefanidis I, ‘Point Of No Return? Britain And The Elgin Marbles | History Today’ (Historytoday.com, 2018) <https://www.historytoday.com/miscellanies/point-no-return-britain-and-elgin-marbles> accessed 2 August 2019
11. Daley, Michael. “Phedias Albion,” Arts Review Volume 52 (2000): 34-35
12. Satija A, ‘Ownership Of Cultural Property: A Case Study Of The Elgin Marbles’ (CRIME SCENE TO COURT ROOM, 2017) <https://jguforensics.wordpress.com/2017/03/05/ownership-of-cultural-property-a-case-study-of-the-elgin-marble-case/> accessed 1 August 2019
13. Sinclair A, ‘The Return Of Cultural Property’ (Pcliv.ac.uk) <https://pcwww.liv.ac.uk/~Sinclair/ALGY399_Site/return.html#UNESCO> accessed 1 August 2019
14. Alen A, ‘Elgin Marbles Case’ (Culture Export Management, 2014) <https://cultureexportmanagement.wordpress.com/2014/09/21/elgin-marbles-case/> accessed 31 July 2019
15. ‘Fresh Refutations To Old Objections’ (BCRPM, 2017) <https://www.parthenonuk.com/refuting-the-bm-s-statements-1> accessed 2 August 2019
16. Vardas G, ‘The Parthenon Sculptures And The European Court Of Human Rights’ (Elginism, 2016) <http://www.elginism.com/elgin-marbles/parthenon-sculptures-european-court-human-rights/20160725/8113/> accessed 2 August 2019
17. Schmidt-Gabain F, ‘My Solution To The Parthenon Marbles – Let’s Split Them In Half’ (the Guardian, 2019) <https://www.theguardian.com/artanddesign/2019/feb/15/the-parthenon-marbles-debate-british-museum-acropolis-athens-elgin-marbles> accessed 2 August 2019
18. Herman A, “What’s in a Title? It’s Time to Reframe the Parthenon Marbles Debate” (The Art NewspaperMarch 22, 2019) <https://www.theartnewspaper.com/comment/what-s-in-a-title-it-s-time-to-reframe-the-parthenon-marbles-debate> accessed August 1, 2019

[1] The Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954

[2] Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970

[3] Acropolis was a part of the ottoman empire at the time

[4] Alexandra Zeman, 2012

[5] Inspired by Melina Mercouri and founded by the British architect James Cubbit in 1983, the idea to set up this committee arose from the importance of having pieces with such architectural and historical integrity assembled altogether in Acropolis. The aim of the committee is as follows “To secure the reunification of the Parthenon Marbles to Greece in accordance with the resolution of the UNESCO Conference of Ministers of Culture held in Mexico on 4 August 1982. To this end – we intend to present the case as fully as possible to the British public and to bring the most effective pressure on the Trustees of the British Museum and the British Government”

[6] An order issued by an ottoman sultan

[7]  Aishwarya Satija, ‘Ownership Of Cultural Property: A Case Study Of The Elgin Marbles’ (CRIME SCENE TO COURT ROOM, 2014)

[8] The statements I have rephrased below are all made by the Chairman of the British committee for the reunification of the Parthenon marbles Dame Janet Suzman and the vice chair professor Paul Cartledge

[9] Translation attributed to Reverend D.P hunt

[10] History senior lecturer in the University of Toronto

[11] ‘Other Cases Of Return Or Restitution Of Cultural Objects | United Nations Educational, Scientific And Cultural Organization’ (Unesco.org, 2019)

[12] A philosophy that endows cultural properties to be reinstated within the borders of their origin for the interest of national pride, heritage and values. The ideology gained more recognition when both the 1970 UNESCO convention and UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects were ratified

[13] The UK minister for culture and the digital economy at the time, Ed Vaizey, alongside the minister of Europe David Lindington rendered such proposal fruitless and noted that “mediation would not carry this debate substantially forward” on grounds of the legal acquisition of the marbles and the detrimental effect the involvement of the UNESCO would have

[14] An entity representing the people of Athens whom rights has been violated by the British government through the illegal and unethical possession of the Parthenon sculptures that denied them an access to their historic belongings

[15] Alexander Herman (Assistant Director of the Institute of Art and Law), ‘Athenian Group Brings Human Rights Claim For Return Of Parthenon Sculptures’ (Institute of Art and Law, 2016)

[16] European Court of Human Rights (1993) 16 EHRR 440 24 JUNE 1993

[17]European Court of Human Rights Application no. 15318/89

[18] Judgement was made on the 31^st of May 2016

[19] Tan Johnston, ‘Bid To Force Britain To Return The Elgin Marbles To Greece Thrown Out Of Court’ (The Independent, 2016)

[20] A latin phrase that translates to something for something