Starting from the premise that the concepts of legality and morality might often overlap, yet are not always interchangeable, we can attribute to an act either of these traits. I will not expand further on the law-morality debate, a choice which might not be very wise, given that the reasoning I will expose depends inextricably on this dispatchment of the two. Just take my word for it, or if absolutely impossible to agree, suspend your disbelief and for a moment, attribute to my words a semblance of truth sufficient for our minds to meet.
Questions concerning cultural property touch upon the core of this distinction, since it is often the case that moral arguments lead to different conclusions than legal arguments. A pertinent example is that of the Parthenon Marbles.
In this debate, we can witness a stark difference between the texture of arguments used by the two opposing sides, with the anti-repatriation claim heavily relying on black-letter law, whereas the repatriation claim depends on more sentimental descriptions of the marbles being the epitome of the history and of the soul of the Greek people. I will not try to show that the latter arguments are of a lesser quality or value, but I am firmly convinced that the former are required, too, if not to ground, but to definitely accompany the repatriation claim, especially since there are significant legal arguments that can be called upon.
In order to determine how good is the British Museum’s (i.e. the British) claim to the Marbles, we shall first determine how good was Lord Elgin’s title to the Marbles; the British government bought the Marbles from Lord Elgin in 1816 after a discussion in Parliament, in full knowledge of the facts – the purchase of a possession from someone who has no ownership right to it also denies the purchaser any ownership title, per the nemo dat rule.
This determination shall be judged according to four main prongs:
a) Did the Ottoman authorities, who at the time were the recognized government of Greece, have the authority to transfer property rights in the marbles to Lord Elgin?
Between 1801 and 1812, Thomas Bruce, 7th Earl of Elgin (who from 1799 to 1803, served as the British Ambassador to the Sublime Porte of the Ottoman Empire) removed many of the surviving sculptures on the Parthenon and shipped them to England.
In 1801, when the crucial transaction took place, all of Greece was then a part of the Ottoman Empire, ruled from Constantinople, as it had been for nearly four centuries, with Athens itself conquered by the Ottomans since 1460. By 1800, normal Turkish standards of administration had been established with the Grand Vizier, the head of the executive power of the Ottoman government and second in command only to the Sultan, the international recognized authority governing Athens.
Under the international law of that time, the acts of Ottoman officials with respect to persons and property under their authority were presumptively valid. Even though their actions might seem regrettable, unsound or unfeeling, one would not question their legality. In this instance, the Ottomans had a solid claim to the legal authority over the Parthenon because it was public property, which the successor nation acquires on a change of sovereignty.
It seems clear that under the international of the time the Ottomans could give Elgin the right to remove the Marbles. Yet, if we consider the extent to which the Ottomans were induced by bribery to permit and condone the removal, we can deduce that the right was not unequivocal. This claim is strengthened by the idea that the Parthenon was a religious or rather spiritual rather than merely state, public property,
b) Did the Ottoman authorities in fact authorize Lord Elgin to remove the Marbles and take them to England?
Elgin requested written request for permission and protection in the following objects:
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 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.
The third of these could be interpreted as authority for what Elgin actually did – so, in order to determine the scope of the Ottoman authority, we shall examine the answer to this third request.
Elgin, indeed, obtained from the Ottomans in Constantinople, where he was the British ambassador, a formal written instrument called a firman, addressed to the local authorities in Athens.
Yet, we do not have the original firman – only an Italian translation, whose English translation is attributed to Reverend D. P. Hunt, secretary to Lord Elgin and which I now quote:
“[I]t is incumbent on us to provide that they [i.e. Elgin's artists] 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 or their various it is our desire that on the scaffolding, using instruments; arrival of this letter you use your diligence to act conformably to the instances of the said Ambassador [Elgin] as long as the said five artists dwelling in that place shall be employed in going in and out of the citadel of Athens which is the place of observation; or in fixing scaffolding around the ancient Temple of the Idols, or in modelling with chalk or gypsum the said ornaments and visible figures; or in measuring the fragments and vestiges of other ruined buildings 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; nor even by you to whom this letter is addressed and that no one meddle with their scaffolding or implements nor hinder them from taking away any pieces of stone with inscriptions and figures.”
The language of this last clause is at best ambiguous. Is it a flowery concession of everything for which Elgin asked or does it reflect as a narrower intention of the Ottomans, frowning upon the massive removals from the Parthenon?
I tend towards the latter. The document appears to contemplate measuring, drawing and making casts as the principles activity of Elgin’s artists and workmen, while the phrase ‘taking away any pieces of stone’ seems incidental, intended to apply to objects found while excavating.
In practice though, a different attitude was taken, and the work of dismantling the sculptures on the Parthenon an packing them for shipment to England began in earnest, while in the process, Elgin’s party damages the structure, leaving the Parthenon not only denuded of its sculptures but further ruined by the process of removal.
c) Did Lord Elgin exceed the authority given to him?
An act in excess of the authority originally granted can be ratified, expressly or by implication from conduct indicating acquiescence. There is evidence that the Ottomans twice ratified what Elgin had done.
Firstly, it appears that Elgin caused the Sultan to issue additional firmans addressed to the Voivode and Disdar of Athens, in which the Sultan generally sanctioned what these local officials had done for Elgin and his party.
Secondly, a large shipment of Marbles was held up in Piraeus (the port of Athens) because the Voivode, under pressure from the French, refused to give his permission for their embarkation. Eventually, the Ottoman government gave written orders to the Athenian authorities to permit the shipment, and the Marbles were allowed to leave for England. Together these two events make a strong case for ratification of the removal, even if it exceeded the authority given in the original firman. If the removal was so ratified, then as a matter of international law, the removal was legal, and Elgin was able to transfer title in the Marbles to the British Museum.
If similar events were to occur today, new principles of international law would apply. Until this century, a treaty imposed on the loser by an aggressor was valid under international law. [But with adoption of the Kellogg-Briand Pact and the Vienna Convention on the Law of Treaties, the rule was changed, as now each party is to refrain from requisitioning movable cultural property located in the territory of another party. Under the new rule, it might be argued that the Ottoman occupation of Greece and the Ottoman permission to remove Greek antiquities were illegal, thus clouding Elgin’s title to the Marbles.]
But the rule is that the legal effects of a transaction depend on the law in force at the time, for there can be no retroactivity in the law; the justice, as well as the practical necessity, of the avoiding of ex post facto laws, is obvious.
It is possible that the Greeks would have lost their rights even if the removal were illegal, since it all happened long ago, between 1801 (the first removals from the Parthenon) and 1815 (the final shipment to England). The passage of time inevitably has an effect, and all domestic legal systems recognize this fact in rules of prescription or statutes of limitation. In international law, the same considerations apply: witnesses die, memories fail, people rely on stable appearances and so on. Minister Mercouri appears to have stimulated the first official requires by Greece for return of the Marbles, although private approaches have undoubtedly been made over the years. If we take the date of Greek independence from the Ottoman Empire to be 1828 (1821 is sometimes used, but 1828 is the more widely accepted date), then the Greeks had 155 years during which to pursue their legal remedies before they finally demanded the return of the Marbles in 1983.
Prescription statutes run against one who fails to exercise an avail- able judicial remedy, and it might seem unfair to apply the prescription principle in international law when no forum capable of definitively determining rights and providing remedies exists. In fact, however, Greece might have brought suit in an English court for return of the Marbles, on the theory that they were illegally taken by Elgin. As we have already seen, the courts of most nations are open to an owner seeking the return of stolen property.69 Greece has accordingly been in a position to sue for the Marbles since 1828 and has never done so. Nor has Greece aggressively pursued its diplomatic remedies, since the 1983 request for return of the Marbles is the first such official diplomatic demand. Unless some unusual exception were made, it seems clear that the Greeks have lost any right of action they might have had for the recovery of the Marbles before an English court, where the applicable statute of limitations is six years.
Nevertheless, that is why extra-legal situations exist, and special committees are being built under the auspices of various Hague Conventions, to correct wrongs of the past and to apply modern international law principles, even retroactively, when judged absolutely necessary.
d) Did the British Museum exercise its trusteeship duties?
Even if the idea that the Greek people own the marbles because of original ownership was to be a failure, a last resort exists: the claim that the British trusteeship is a cynical sham for more than half a century.
The Marbles, according to the stewardship claim, were unique and priceless masterpieces held by the British nation in perpetuity on behalf of the whole civilised world, so that they could be studied and admired. And the unlawfulness of the British Museum hosting the Parthenon Marbles stems from the fact that the Museum took decisions inconsistent or improper with their statutory and trusteeship duties, misusing their powers when it comes to preservation, leading to damage which is obvious and cannot be exaggerated.
According to testimonies in St Clair’s work, Duveen had urged various technicians to make the sculptures as white as possible and to brighten them up, since their tawny gold of two thousand years colour would not captivate the eyes of the visitors, which were supposedly searching for spotless, sparkling marbles.
To achieve that so, they had to remove the surface of the marble and to impart to it a smooth and white appearance, eradicating evidences of two thousand years of exposure to the climate of Greece was a document of the utmost importance. For instance, the Selene’s horse’s head has been described as having been ‘skinned’, acquiring a dull white or grey, instead of this majestic yellow-ish tone. The surfaces of the sculptures are now different from the surfaces of the sculptures which remained in Athens which still show the scaly surfaces, the variegated brown patinas, and the occasional shining surface textures which were formerly present on the sculptures now in London.
On the frieze of the Mausoleum, exhibited in a nearby gallery of the British Museum, and not railed off, the naked eye can see the bright red of a plume and some blue on the background. On another statue, there appear to be traces of gold. On the Phigaleian sculptures, which also escaped overcleaning, a recent analysis made with the help of an electron microscope has detected traces of a gypsum plaster coating probably applied in ancient times after the sculptures were put in place on the building. As has been repeatedly shown in the recent history of archaeology, traces, even minuscule traces, can sometimes allow larger questions to be solved, including the making of discoveries not yet within our current research capabilities or horizons. The prospect of recovering similar evidence form the Parthenon sculptures, whether of paint, other coatings, or of metal, has been severely reduced, perhaps lost. The damage which has destroyed the evidence of the past, has also destroyed possibilities for the future – it cannot be reversed or remedied.
All in all, what is to be kept from these words is not the personal opinion of the writer, but a will to introduce a debate defined by logos rather by pathos, not because legal rules have some intrinsic force, but despite sometimes offering multiple interpretations, they can provide a common basis from which a more effective dialogue can be built, against the imprecise and often controversial approach to moral questions.