Should They Go Back? Problems of International Law and the Elgin Marbles
Vol. 42 Associate Editor
Sitting on top of the Acropolis, the highest point in Athens, the Parthenon is a fixture of the Athenian skyline. Yet this icon of Greek history is incomplete. One of its most significant parts, the Elgin marbles, sits in a museum in Britain. Removed by a British ambassador while Greece was under Ottoman rule, the marbles were removed and later purchased by the British Museum. Though at the time, Elgin’s removal may technically have been legal, questions still remain as to whether Greece could recover the marbles. International treaties, such as the 1970 UNESCO Convention and the 1954 Hague Convention, have failed to retroactively protect looted art and facilitate discussions regarding their return. The British government firmly holds that the marbles were obtained legally and has discouraged any talk of repatriation. Parliament supported this stance, with acts such as the British Museum Act of 1963, which prevents the Board of Trustees at the British Museum from “disposing” of a work of art—that is, returning it to its original owner or country. The return of the Elgin Marbles has so dramatically affected the mentality of the British government that it continues to shape its outlook on repatriation of other art. The British government prevented the restitution of Nazi looted art to its original owners as recently as 2005. According to the attorney general, the “return to the heirs of the original owners could create a legal opening for Greece to pursue its claim to the Elgin Marbles.” When Lord Elgin removed the marbles from Greece, the damage done was irreversible. On the Parthenon itself, he and his team “sawed” at pieces of its frieze, taking with them every piece that fell from the structure. In four years, they removed about half of all surviving artifacts present at the Parthenon. The removal not only damaged the artistic impressiveness of the Parthenon, but its structural integrity as well. One can still observe saw marks in the marble. Britain’s claim to the marbles rests on their stance that they were removed legally. They are not wrong—it seems that Elgin’s actions may technically have been legal in the context of the system he was working within. Elgin removed the marbles during the Ottoman occupation of Greece. The Ottoman Empire ruled Greece through local governors who issued Elgin’s “firman”. The firman gave Elgin authority to work on the Acropolis. The firman—or rather, the surviving Italian translation—states that Elgin’s team had permission to work unbothered: “in fixing scaffolding around the ancient Temple of the Idols, or in modeling 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.” Though ambiguous in some of its language, the firman clearly did not grant Elgin unfettered authority concerning the marbles. The “whole sentiment” of the document approves the removal of excavated artifacts, not statutes or friezes still part of the Parthenon’s structure. Even though Elgin clearly overstepped his legal authority as granted to him in the firman, the Ottomans arguably legitimatized his destruction through two later actions. In 1802, Elgin received a new firman reestablishing his rights to work on the Parthenon. Then, in 1810, another new firman allowed Elgin’s successor to ship the remaining part of Elgin’s collection out of the country. By allowing this, the Ottoman government seemed to reaffirm that the collection was legally removed. Given that the British government has established that it will not cooperate in the repatriation of the marbles, it would be natural for Greece to look to international law in seeking their return; however, international law provides no such assistance. In fact, despite a multitude of international treaties and covenants regarding the protection of cultural heritage, it is likely that none support Greece’s plight. Such treaties, if they were more stringent, have the potential to give weight to Greece’s claims. The 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict is one such treaty. It was the first comprehensive international treaty to exclusively address the protection cultural property. The agreement outlined several principles, including the protection of cultural property from bombings and vaguely discussed “military necessity” during times of war. Of particular significance to this agreement are its two protocols, one from 1954, and another added in 1999. The First Protocol calls for parties to the agreement to be active in the prevention of illegal exportation of cultural property from their territories. This protocol also applies to occupied territories. Under the treaty, occupying powers are under an obligation to protect the cultural property of the land they control—certainly, the Ottoman government did not protect the Elgin marbles when they permitted them to be removed and shipped out of Greece. Problematically, this treaty is difficult to enforce due to a lack of a retroactivity provision. The protections it offers are therefore extremely limited and cannot help claimants to works destroyed or looted prior to 1954. Frustratingly, the Second Protocol still lacks a retroactivity provision or much more stringency than the First. Due to “the experience gained from recent conflicts and the development of international humanitarian and cultural property protection law since 1954,” a new protocol was drafted and adopted in 1999. The Second Protocol clarified many of the issues raised in the First Protocol. In particular, the Second Protocol enhanced the protections given to cultural property that was not actively being used for military purposes. The result of the Second Protocol was the strengthening of the initial ideas from the First—though it still had its limits. The protocols would clearly be applicable to the occupying Ottoman government and the Elgin marbles if such treaties were made to apply retroactively. The Hague Convention’s protocols, like many future treaties, were largely symbolic and went unenforced. Another missed opportunity was established in 1970. UNESCO, the United Nations Educational, Scientific, and Cultural Organization is another major source of international law regarding cultural property. This convention speaks on a large number of problems very broadly, effectively solving very few of them successfully—also in part because the project was chronically under-funded. UNESCO was charged with the building of a peaceful global community, which included advocating for the arts and sciences. A central issue was the illicit trade of illegally looted antiquities, which provided incentives for the looting of archeological sites. The convention attempted to prevent the export of looted goods from source countries into other countries; however, it is controversial. States that have adopted the Convention have export control over all cultural material in their country. This means that states, and not museums, control the flow of antiquities into their country, which is unpopular with museums. The numerous controversies over the 1970 UNESCO Convention led to the creation of the 1995 International Institute for the Unification of Private Law (UNIDROIT) Convention. This convention attempted to deal with the problems and ambiguities of the 1970 convention. It features five chapters, each containing provisions pertaining to different areas of the law and cultural property. The functionality of the Convention is partly responsible for its failings: because the convention is “self-executing,” it is also not retroactive. The lack of a retroactivity clause undermines its effectiveness as international law. Prior to its ratification in 1995, hundreds of years of damage to cultural property had taken place. By failing to address the repatriation of cultural heritage that was looted prior to 1995, the treaty fails to address a large unanswered question in the field. Britain’s worries appear to be somewhat well-founded—at the very least, there would be a strong moral significance if the marbles were returned to Greece. While it is not clear that Greece could even bring a claim at this point due to statutes of limitations, if Greece were to secure the return of the marbles, it would be a significant shift from current international policy. Looking past the fact that it would be a great victory for Greece, and loss for Britain, it could set an important precedent: “If the principle were established that works of foreign origin should be returned to their sources, as Third World nations increasingly demand in UNESCO and other international fora, the holdings of the major Western museums would be drastically depleted.” Returning such a major work as the Elgin Marbles would symbol a huge shift in international policy regarding looted objects. In short: “The Elgin Marbles symbolize the entire body of unrepatriated cultural property in the world’s museums and private collections. Accordingly, the preservation and enjoyment of the world’s cultural heritage and the fate of the collections of the world’s great museums are all in some measure at stake in a decision about the Marbles.” The legal significance of the Elgin Marbles is intricately connected to the fact that the Elgin Marbles are cultural property: but whose?
 See Izidor Janžekovič, A Series of (Un)Fortunate Events: The Elgin Marbles, 16 J. of Art Crime 55, Fall 2016.  Id.  Id. at 70.  William St. Clair, Lord Elgin and the Marbles 102 (1998).  Jessie Bangs, The History of the Elgin Marbles: Past, Present, and Future, Nichollis State University, https://web.archive.org/web/20190502140906/https://www.nicholls.edu/art-dhc/2004essay2.html  Id.  Dyfri Williams, Lord Elgin’s Firman, 21 J. of the History of Collections 49, 49-55 (2009).  Id.  John Henry Merryman, Thinking About the Elgin Marbles, 83 Mich. L. Rev. 1881, 1898 (1985).  Janžekovič at 68-69.  Id.  Id.  Patty Gerstenblith, 2008 Cultural Heritage Legal Summary, 34 J. of Field Archaeology 78 (2013).  Carol A. Roehrenbeck, Repatriation of Cultural Property—Who Owns the Past? An Introduction to Approaches and to Selected Statutory Instruments, 38 Int. J. of Legal Info. 185, 195 (2010).  Second Protocol (1999) to the 1965 Convention for the Protection of Cultural Property in the Event of Armed Conflict, Mar. 26, 1999.  Id.  See Roehrenbeck.  UNESCO in Brief – Mission and Mandate, UNESCO, https://en.unesco.org/about-us/introducing-unesco.  UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970, Nov. 14 1970.  UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, June 24, 1995.  Roehrenbeck, at 196.  Id.  Merryman, at 1900.  Id. at 1895.  Id. The views expressed in this post represent the views of the post’s author only.