Dr. Irini A. Stamatoudi, LL.M., Faculty of Law, University of Leicester, UK
The debate for the return of the Parthenon Marbles has been at the center of attention for many years both for the Greek and the British side. Only a few things in the area of cultural treasures have seen so much publicity and so much dedication from both sides. For the British, the Parthenon Marbles are the jewel of the British Museum, whilst for the Greeks they are the definition of the Greekness itself. For both sides, the Parthenon Marbles represent the reflection of a European cultural identity together with the best example of the High Classical period of the Greek art.
The question at this stage is how law fits into such a context? Usually, law has the unfortunate task of regulating situations that are complex and ambiguous although in the hearts of many people the solution may be simple and obvious. However, the problem with the law in such cases is that it regards every issue in the same objective way, albeit not irrespective of ethics and moral considerations; especially, for those who believe that law is reflection of natural law and should correspond to the morality and ethics of the society at any given time. An additional problem the law presents is that the success of claim is essentially dependent on evidence. However, when we are dealing with cases that date back many years evidence becomes more difficult to find, in addition to the problem of time limitations. The Parthenon Marbles case suffers from both those problems par excellence.
However, the author believes that there are still legal grounds to base the return of the Parthenon Marbles to Greece. It is hoped at the same time though that both Britain and Greece will find ways to solve this problem amicably staying away from any potential litigation which might ruin the very good relationship of the two countries and the solidarity between the two European Union Members. Private or public international law and choice of law issues
Public International Law
The Parthenon Marbles case can be brought before the courts either as a case of public law or as a case of public international law. If the Greek Government decides to sue the Trustees of the British Museum in the British Courts (where the defendant is resident) (1), we are then clearly dealing with a case of private law. Alternatively, the Greek State can bring an action against Britain before the International Court of Justice. Both Greece and the United Kingdom are members of the United Nations and according to article 36(2) of the Statute of the International Court they " may at any time declare that they recognize as compulsory…the jurisdiction of the Court in all legal disputes concerning...any question of international law." In this case, public international Law applies. That means that the Court will refer to International Treaties in the area as well as customary law.
The most relevant international Convention in the area are the 1970 Unesco Convention on the Means of Prohibiting and Preventing the illicit Import, Export and Transfer of Ownership of Cultural Property, the 1995 Unidroit Convention on Stolen or Illegally Exported Cultural Objects and the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict together with the Protocol to it. (2) The 1954 Hague Convention clearly recognizes as illegal any act of removal of a country's cultural property by the occupier in times of war. Therefore, any removal or intended transfer of cultural property by the Ottomans at that stage is illegal. (3) In this light, a country's cultural heritage is considered to be "untradeable." The notion of "untradeable" objects, which is found in Roman law by the name "res extra commercium," is also found, albeit in another context, in the 1970 Unesco Convention. Article 7(b)(1) provides that State Parties shall "prohibit the import of cultural property stolen from a museum or a religious or secular public monument or similar institution." Whilst article 3 of the same Convention provides that " the import, export or transfer of ownership of cultural property effected contrary to the provisions adopted under this Convention by the States Parties thereto, shall be illicit." (4) Lastly, article 3 of the Unidroit Convention unequivocally provides that " the possessor of a cultural object which has been stolen shall return it. (5) In toto, a country's cultural heritage (6) cannot be disposed of under any circumstances, and if that has occurred, restitution should be unequivocal. (7)
The essential problem in all the aforementioned international conventions is the fact that they do not have retroactive effect and therefore do not cover claims that date back almost 200 years. That in itself does not mean that there no grounds for the return of the Marbles under international law. At this point, it must be stressed that, although the Conventions were not in force at the time of the removal of the Marbles from Greece, the principles that are enshrined and codified in the Conventions are thought to go back to the start of the 19th century. Moreover, most of the Treaties, whether or not they have been ratified by the states at issue, by the 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 (8). Also, bringing a claim in international law has the advantage of it being decided by an international judiciary in an international context. That would provide both parties with a neutral and highly respected forum. As a result, any outcome may be more readily acceptable to the parties than a decision reached by a court in one of the parties. Lastly, International law does no recognize any statutory limitation periods. Consequently, any rights of return can still be claimed since national law cannot prescribe rights in international law.(9) This analysis makes clear that if one applies public international law, one has to prove that the removal of the Marbles from Greece constituted an illegal act. This finding of fact is a crucial one in the context of the public international law, but right from the outset a proviso should be added that even as a matter of fact it is shown that the removal of the Marbles was illegal the conclusion under public international law is not a straightforward one due to the lack of any retroactive effect of the relevant international conventions. In order to find out whether the removal of the Marbles was legal or not, we are obliged to turn away slightly from public international law. Fact is indeed that the removal of the Marbles did not take place by or on behalf of the United Kingdom. The removal was initiated and carried out by Lord Elgin, the then British Ambassador to the Ottoman Empire, in his private capacity. And is only at a later stage that Britain acquired the Marbles. That brings us to private law uses. Private International Law
Talking about private law is more complex than talking about public international law since there is more than one system of private law. Private international law, therefore, enters the picture to determine when a private suit can be brought and which substantive law will apply. In terms of jurisdiction, the two obvious places where a lawsuit can be brought, e.g., against the Trustees of the British Museum, are either in Greece or Britain. From a European private international law perspective this kind of claim is probably of a civil nature and, therefore, article 2 of the Brussels Convention 1968 applies. (10) This means that the defendants can be sued in their domicile, i.e., in the courts in London. Alternatively, one could argue that there may be a claim in tort (act against the Parthenon that caused damage or injury; Editor's Note) involved. On that basis, article 5.3 of the Convention offers an alternative and the lawsuit can then be brought either in the place where the act, giving rise to the damage, took place or in the place where the damage occurs. In any case, this could potentially give the Greek courts jurisdiction over the matter. It is, however, doubtful whether article 5.3 would be a sensible alternative to use. It can be argued that article 5.3 can only be used against the tortfeasor (the perpetrator; Editor's Note) himself. The problem in this case is that whoever is to be sued is not the tortfeasor in as far as the removal of the Marbles is concerned. The goods have changed hands since and, therefore, reliance on article 5.3 is not advisable. Alternatively, one could envisage a tort action based on the retention of the Marbles in London in the knowledge of their illegal removal from the Parthenon Temple. This would probably have to be an action in conversion. (11) Such an action would potentially create damage in Greece. It is, however, doubtful whether this could be called direct damage (12) and it may be the case that the direct consequences of the act of retention occur in London where the goods cannot be claimed by the rightful owner. In short, the safest solution in terms of jurisdiction seems to be to bring the case in the English courts. Even, though, it is often accepted that this is really a matter between States, it is unlikely, but not impossible, that a private law action will effectively be brought. The preceding analysis is nevertheless important because it will inevitably be the private international law of the potential forum that will supply the choice of law rule. If we assume that English private international law is most likely to apply, English law will determine the law applicable in tort. Until May 1996 that would have been determined via the double actionability rule, as clarified by the House of Lords in Chaplin v Boys. (13) Fortunately, it is now no longer necessary to deal with the complexities of the double actionability rule. It is clear that retention is an ongoing tort and therefore any action can be based on facts that occurred after 1st May 1996. This means that in terms of choice of law the provisions of Part III of the Private International Law (Miscellaneous Provisions) Act.1995 will apply. Under this Act, the applicable law will be the law of the country in which all the elements of the tort occurred, since it is indeed arguable that all elements of the tort at issue occur in England.(14) Applying this to the tort of conversion, i.e., keeping the originally illegally acquired goods in England, it is clear that all the elements of this tort occur in England. The 1995 Act will therefore lead to English law as the law applicable in tort. This would undoubtedly not be the end of the story though. An action in tort under English law would be met with a defense under contract. (15) The latter argument would be based on the fact that for the tort to exist, the retention must be unlawful and that the contract between Lord Elgin and the British government, to which the British Museum and its Trustees can be seen as successors to the British government, provides a defense because it renders the retention lawful. From an English private international law perspective the very first question to ask is whether the applicable law in tort allows for a contractual defense to be brought. English law as the applicable law in tort in this case does indeed allow for a contractual defense to be raised. The next point is whether or not this particular contract and the defense contained in it are valid. This point is to be determined by application of the law applicable to the contract. Here we are confronted with a choice between English and Scots law since it is not entirely clear which law governed the contract as its proper law in the absence of a choice by the parties. In any case, it does not matter, because both under English and Scots law a contract of sale does indeed purport to transfer ownership. The only question remaining is whether Lord Elgin was in a position to carry out his contractual obligation to transfer property in the Marbles. Both systems do indeed have a rule that one cannot transfer a title to the goods which one does not possess himself/herself. In short, the issue is not about the purported effect of the contract, but whether Lord Elgin himself has acquired ownership of the Marbles. To finish the argument in private international law, it is only when the applicable law in contract leads to the conclusion that the contract and the clause in it containing the defense are valid and that they do cover the situation at issue that one is bound to conclude that the defense that is allowed by the applicable law in tort does indeed apply. Returning to the tort issue this then inevitable leads to the conclusion that the defendant is not liable under the applicable law in tort. The key issue in this debate is, therefore, whether Lord Elgin ever acquired ownership of the Marbles. If this is the case, then he was able to transfer title and as a result the Trustees of the British Museum would have a valid contractually based defense against any allegation in tort that they were illegally retaining the Marbles. The importance of the decision on legality or illegality of the removal is further illustrated by the fact that in cases of illegal removal in relation to immovables English law contains special rule on "fixtures". There is, of course, the view 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). 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 reinstalled a sthey constituted an integral part of it and continued to do so after their unauthorized removal. (16) While in Norton v Dashwood, (17) tapestries which had been affixed to the walls of a house for more than a 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 Geneve et Fondation Abegg v Consorts Margail, (18) 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. The 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 definitely to a building as part of the overall and permanent architectural scheme that would 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. (19) 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 offense, whether or not the person removing them realized that they were fixtures attachyed to a listed building or not. The offense is one of strict liability and no "meus rea" needs to be demonstrated. The decision in R v Walls Street Metropolitan Stipendiary Magistrate, ex parte Westminster City Council (20) 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 percent of a listed barn in the case at issue, R v Leominster District Council, ex parte Antique Country Building Ltd and Others and Scott and Others v Secretary of State for the Environment and Another (21) 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 favor the offender who took fast and radical action to destroy the building and its architectural scheme. The argument advanced Hoffman J., which was quoted in R v Leominster District Council, ex parte Antique Country Buildings Ltd 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 of 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 motions 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. The Issue of Title
Any private action brought in tort will raise an important incidental question. The Greek State whenever it sues in tort will have to prove that from a legal point of view it has locus standae. In relation to an action in conversion this means that it will have to prove that it has acquired title to the goods. From an international point of view it can be argued that the applicable law to the incidental question will have to be determined separately on its own merits. In the Case at issue, this means that the issue is determined under English private international law by the choice of law rule that applied to issues of title. (22) This choice of law rule leads to the application of the lex situs. This means that the successive holders of the legal title to the Parthenon Marbles, assuming that their removal in 1801 was illegal, will have to be determined first under Ottoman law and after the creation of the Greek State under modern Greek law. It is submitted that this determination is rather straightforward in this case at issue. The Parthenon has always been a public place and it is therefore easily accepted that the title in the site and the buildings on it was first vested in the Ottoman State and subsequently in the Greek State. (23) Valid Title to the Marbles
A successful claim in conversion will require proof of the fact that the initial removal of the Marbles was illegal. From the British side it becomes therefore imperative to show that Lord Elgin acquired the Marbles in a legitimate way. Legitimate acquisition of the Marbles by Lord Elgin requires a valid contract. In other words, there must have been either a contract of sale or a donation between the Ottomans and Lord Elgin. Necessarily, the validity of any contract has to be assessed according to the "lex contractus". (24) Any potential contract between Lord Elgin and the Ottomans could only have been concluded in Ottoman territory. That means that the law, which is applicable, is the Ottoman law of the time. Although it is hard to go back and find what was the Ottoman law of the time, we can still look at the merits of the case and assess whether it can be said that the Italian translation of the firman that was found logically amounts to a valid contract. According to the laws of most countries, there is usually no contract of sale unless consideration is given. It is clear from the Italian translation of the firman that was found, that no consideration whatsoever was given to Ottomans for the Marbles. Even if it was said that the Ottomans in reality tried to gain Britain's goodwill by giving away cultural treasures, still that presumption would be flawed since Elgin was dealing with the Ottomans on this occasion in his private capacity and not as British Ambassador. An alternative interpretation is that perhaps the firman constituted some kind of donation. That, of course, would require us to go back and look into the actual words of the firman as well as its legal nature. According 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 favor be conferred on a person". Firmans were held to be administrative written instruments, which constituted written permissions (not capable of annulling or amending the law, if the law provided something contrary to the firman) and not contracts. That becomes even more clearer if one looks into the actual words of the firman and compares them with Elgin' s request to the Sultan. Lord Elgin requested to the Sultan to allow him: "(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. (25) Two things are made clear from the way this request is drafted. First, Elgin' s essential purpose seemed to be the drawing and modeling of the Ancient Temples and the making of archaeological excavations. Second, he alleged that he might want to take away sculptures or inscriptions that would not interfere with permanent structures such as works or walls of the Citadel. That by definition excludes the removal of any Marbles from the Parthenon since such an act would necessarily interfere with permanent structures of the Citadel. The sculptures on the Parthenon did not lead an independent life of their own nor were they sculptures that were affixed to the temple. They formed an integral part of it since they were sculpted on the original marble structure of the Temple. Any removal would necessarily imply demolition of the Temple. If any restricted interference with the sculpture of the Temple was not included or implied by the document even less was any massive removal of marbles implied. It was perhaps known by Lord Elgin at that stage how far his political and other means of influence would allow him to go. An archaeological interest to the site would cause no harm. Anything else would eventually raise the Ottoman eyebrows, especially if one takes into account that the Ottomans were not ignorant of the archaeological significance of the site and they themselves had used this site in the past as a Mosque. How would they now allow someone to bring the Temple apart and take parts of it? Therefore, no reference was made to taking apart parts of the Temple and removing them in massive numbers. On top of that, why would one want to draw and model the ancient Temple if his initial purpose was to take parts of the Temple away? In this scenario, he would probably be better off to draw these parts at the quietness of his house. At that stage the impression that was conveyed to the Ottomans was probably that they were dealing with a person with a genuine archaeological and educational interest for the place. That person was also given the liberty to take certain stones from the excavations away, while, however, would not interfere with the site. The arguments in this case can only become clearer if one reads the English translation of the Italian translation of the firman. Elgin' s massive removals of Marbles seem to have been based on the following phrase: " [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" (26) The Ottoman "permission" seems to be even narrower that the one originally required by Elgin. The Ottomans do not even refer to the taking away of sculptures or inscriptions. They have clearly understood as Elgin 's initial purpose to be the viewing, drawing and modeling of the Temples. Why would be one interested in viewing, drawing a Temple if his initial purpose was any removal of constituent parts of it? The Ottomans refer to stones in a way, which is clearly linked to Elgin 's freedom to make excavations. These stones are clearly meant as being loose stones found on the ground or probably in excavations. And the way this document was drafted shows that any removal of stones should not be Elgin 's primary objective. In conclusion, if these two phrases, Elgin 's initial phrase and the phrase of the firman, are seen in conjunction with each other one easily reaches the conclusion that the word "stones" was put there rather cursorily without any serious thought and definitely without having in mind any massive removal of Marbles from the Parthenon Temples. At the end of the day the powers this firman confirms on Elgin are rather restricted and definitely not even coming close to any massive removal of sculptures from the Parthenon Temple. In the light of the above, it is clear that the firman cannot be seen as a contract on the basis of which Elgin acquired the title to the Marbles. We are basically dealing with an administrative written permission which cannot transfer property and which at face value only allows him to have access to the site for particular purposes only. The document does not contain any hint that property is being transferred in exchange of the payment of a certain price. Alternatively, one could forget about contracts of sale and the like and suggest that there must have been a donation. Again, in this case, the firman does not indicate that there is anything more than a permission to carry out archaeological work. The only donation would in this case be the stones found in the excavations or on the ground but in any case clearly nothing that was attached to the structure of the building such as the Marbles. The above discussion makes us reach the conclusion that the Marbles were not acquired by Elgin either by reason of a purchase nor by reason of a donation. That means that the Marbles were acquired illegally and therefore Elgin never acquired title to the Marbles. In turn, the lack of title in Elgin 's head makes it impossible for him to legitimately transfer a good title to the Marbles to the British Government. Time Limitations
Coming back to the tort of conversion and having shown first of all that the Greek State has "locus standae," since it is a successor in the title to the Ottoman Empire, we have now reached the stage where it is clear that the obvious defense against the tort by means of which it is shown that the Marbles have been acquired legitimately does not apply. Another defense from the British side would be that any action would now be statute-barred as a result of the considerable amount of time that has lapsed either since 1815 (when allegedly the removal of the Marbles was completed) or since 1816 when the Marbles were transferred to the British Government. Since a claim would necessarily be brought in an English court we have to determine under English private international law which law applied to the issue. A similar issue arose in "Cty of Gotha and Federal Republic of Germany v Sotheby's and Cobert Finance S.A.", which was concerned with a stolen painting. (27) In this case, the English court argued that English law applies since conversion had taken place in England. In fact, it argued that section 4 of the Limitation Act 1980 provides a special time limit in the case of theft. No thief, nor persons taking the stolen chattel from the thief, may take advantage of the limitation period provided for in section 3 of the Act. The period of limitation only starts if and when the stolen painting was purchased in good faith. The issue, of course, that arises here is whether the Marbles were acquired by the British Government and consequently by the British Museum in good faith. This is, however, an issue to which we will come back later. The Court went on to say that the fact that English law applies on the issue of conversion since we had wrongful interference in England with goods acquired in England does not exclude any other law from applying according to the Foreign Limitation Periods Act 1984. Section 1 of this Act provides that "(1) Subject to the following provisions of this Act, where in any action or proceedings in a court in England and Wales or any other country fall, (in accordance with rules of private international law applicable by any such court) to be taken into account in the determination of any matter: (28) (a) the law of that other country relating to limitation shall apply in respect of that matter for the purposes of the action of proceedings; and (b) except where that matter falls within subsection (2) below, the law of England and Wales relating to limitation shall not so apply. (2) A matter falls within this subsection if it is a matter in the determination of which both the law of England and Wales and the law of some other country fail to be taken into account". The crucial point here is the interpretation of the notion of "any matter". Moses J. argued that this kind of claim is classified as a restitutionary proprietary claim and it aims at the protection and enforcement of the rights deriving from the plaintiff's ownership of the painting. This ownership can only be defined on the basis of the "lex situs". Should we regard this issue of title as separate from the issue of limitation? Section 1(1) of the 1984 Act by referring to the "matter" seems to suggest that the "matter" is the case before the court and nodistinction needs to be made between foreign substantive and foreign procedural law. Therefore, the English court found that both English law and the "lex situs" (which was the German law in the case at issue) govern the issue of limitations since this issue is strongly linked to the issue of title. In the case of the Marbles both Greek and English law should apply, which according to section 1(2) of the 1984 Act means that the effective limitation period is whichever is the shorter. (29) The fact is that on this point Greek and English law seem to agree. According to article 1034 in conjunction with article 1036(1) of the Greek Civil Code, the purchaser does not become an owner, in case when he purchases from someone, who is not the owner himself, unless he acts in good faith. Moses J. discusses obiter one more issue in this case. He says that even if he had concluded that the plaintiff's claim was barred under the foreign law, it would have been necessary to consider whether that law conflicted * * * If we lose the forest, we lose more than an aesthetical dimension of life; we lose an essential quality of life. We lose our imagination and inspiration; we lose the mystery of nature and life; we lose our sensitivity and soul. The most endangered species is not the whale or the forest; it is the earth that we share. That is our home (the meaning of oikos in the term ecology), where all of us – whales, trees and people alike – live and die. Such is the cry of the heart. The world is not hungry simply for bread (Matt. 6.10); it is hungry for a sense of holiness and mystery, for a spiritual vision that does not lose sight of the trees, the poor, and the sacred. This in turn endows us with a sense of integrity for life and the natural environment. It bequeaths on us an understanding of the reconciliation of all people and all things. It implies a covenant between heaven and earth, that God’s will may be “done on earth as in heaven” (Matt. 6.10). That is the gift we have received, the promise of new life we have been assured: “God said to Noah: ‘This is a sign of the covenant that I am making between you and me and every living creature … between me and the earth … for all future generations’” (Gen. 9.12-13). That is the treasure I am called to keep. Finally, that is the most precious gift I have to offer my children, and my children’s children. It is, thankfully, far greater than any disgrace or destruction that I have caused. It is the symbol of grace and life.
* Address during the Costas Consultation in Global Mission organized by the Boston Institute at Harvard Divinity School, February 28-March 1, 2003. The Reverend Professor John Chryssavgis is Director of the Environment Office, Hellenic College/Holy Cross, Brookline, MA.