About the conflict of heritage which opposes Greece to the United Kingdom

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The restitution of the parthenon friezes, a subject on the identity of a country eminently diplomatic and … economic

In the facts :

– The marbles of the Parthenon of Athens are taken, under the order of the ambassador of the United Kingdom, Lord Elgin, to follow up on agreement with the Turkish government, whereas Greece is under colonial domination.
– Since the independence of Greece in 1821, the issue of the Parthenon marbles has plagued relations between Greece and Britain.
– In 2009, the Greek government built the Acropolis Museum to house, among other things, the Parthenon friezes, the United Kingdom chose not to return them and broke its commitment.
– To this day, England has not returned the marbles despite Greece’s complaints and various diplomatic efforts to return the friezes to Athens.

Does Greece have a legal basis for winning its case against the United Kingdom and the Parthenon friezes?

In the beginning
After removing a large part of the frieze that adorns the temple of the Acropolis, an English diplomat, Lord Elgin, ambassador of the United Kingdom, shipped the Greek heritage to England in 1802. The transfer of this heritage was carried out in agreement with the Ottoman authorities, occupying Greece until 1830. This agreement is a commercial agreement made under foreign occupation, which means that the occupier received a counterpart and that the parties agreed and created obligations between each of said parties. The parties in presence state, on the one hand, a state authority whose validity it is necessary to verify in order to proceed with the deed of sale, and on the other hand, the legitimacy of a representative of a foreign state authority to acquire it in order to be able to proceed with the sale of the said property.

About the legality of the deed of sale
Here arises the question of the application of the rule of law which frames this act of sale. It could be a question of contract law if the two parties were considered as persons carrying out a deed under private signature but according to the purchaser (the British Government) this is not the case since ” (…) the frieze was bought from the representative of the sovereign authority in office at the time of the sale, i.e. the Sublime Porte, and that the British State is thus the legitimate owner of it “.
Indeed, since the sale of a state-owned property between two individuals is null and void, this answer therefore directs us to verify the said sovereignty of the Ottoman Empire in Greece. Considering that the Ottoman Empire took power in Greece by military force (putsch), and violated the rules of international law by invading Greece, then, substituted itself for the power in place to be able to claim its full sovereignty, it goes without saying that it is not conceivable to validate the Ottoman occupation under the rules of current international law as being a “sovereign state” in the sense of the United Nations Charter. However, it is possible to oppose this modern vision, which constitutes the positive law, with an ancient representation, valid at the time when the facts are described, inscribed in a context in which the act of sale takes place. Unfortunately for the detractors, the sovereignty of the Ottoman State in Greece cannot legally be recognized today, nor before, if one bases oneself on the international law of the time codifying colonization and to quote the works of Isabelle Merle : “The administration of the colonies thus referred to the three types of appropriation of territories by a foreign state : conquest, cession or occupation. In other words, it referred to military force, negotiation, or occupation of a supposedly empty space. The classification was in fact made not only according to the events that had preceded the installation of the colonial power, but also through a “moral” hierarchy of the indigenous populations. Unless one can describe the Greek state in the nineteenth century as non-existent, without government, populated by natives within a space not recognized by other states, and deemed “empty”, the applicable law of the time does not consider the Ottoman colony in Greece to be “sovereign”. In any case, colonial land law cannot be applied. It amounts to saying that the legality of the deed of sale under a colonial state which cannot be considered as such, but as a mere “occupier”, has no legitimacy to sell a property which does not belong to it, but to the predecessor state, namely in this case, a monarchy. This invalidates the theory of the British government acquiring the Parthenon marbles legally since, by extension, no representative of the sovereign authority exists.

Beyond the substantive arguments
Let’s take a closer look at the arguments that the British Museum is putting forward against the Greek State for not returning the Parthenon marbles.
In 2009, it revoked its commitment to return the friezes to the Acropolis Museum, relying on an opinion of its own: “the elements of the frieze are part of the world’s heritage and are more accessible to the public in London than in Athens”. From a legal point of view, no analysis and answer can be offered. Perhaps a topographer, or even a surveyor, would be able to better appreciate this statement. Besides the common sense to oppose, the seriousness pushes to reflect that if the Greek State did not exist in the XIXth century, perhaps that the air corridors twelve years ago were closed? And to go even further, perhaps the British Museum in its agreement with Greece, had stipulated the presence of a parking lot that the civil engineer would have forgotten to take into account and that this element would have been enough to activate a resolutory clause in the agreement…
In 2020, a spokesperson for the British Museum argued in the Guardian that “The Parthenon sculptures were legally acquired and help us tell the story of humanity at the Museum. They are accessible to the 6 million international visitors the museum receives each year”. Yes, except that most tourists don’t know that the exhibit is made up of copies, not moose, hidden from the public eye.
Recently, the 23rd session of the Intergovernmental Commission for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation (ICPRCP) was held at UNESCO headquarters in Paris on May 20, 2022. If the United Kingdom said it was willing to exchange with Greece to find a way out of this quarrel, the deputy director of the British Museum did not hear it the same way.
On May 23, the Greek Minister of Culture reacted to the announcement of Jonathan Williams, deputy director of the British Museum, who said that “a large part of the frieze has actually been removed from the rubble around the Parthenon”. And to complete his statement, which was reported by the Guardian : “These objects were not all removed from the building as has been suggested. The legal problem here is that it is up to the British state to defend itself and prove these allegations, not the Greek state to justify itself. And even if the broken or intact friezes had been “picked up off the ground” by the workers of the ambassador in charge of selling them to the British Empire, no tourist has ever guaranteed his right to recover an object from an archaeological site and make it his property. But, considering what has been demonstrated above, there would be no debate about this.

What is the real motive behind the non-return of the Parthenon friezes?
Evaluating the provocations and the refusals of the United Kingdom and the British Museum, from which the Greek State systematically suffers refusals, we are entitled to question ourselves on the real motivations of the English and more globally, on the consequences that would entail the restitution of the friezes to the Parthenon.
According to some, they would be of an economic nature, and according to others, they would draw the contours of a diplomatic conflict.
When no legally or morally valid reason opposes the restitution of the Parthenon friezes, the ultimate and predictable reason is monetary. How many hundreds of thousands of pounds are spent by the British Museum to contemplate the splendors of Greek antiquity ? What impact on the influence of England does the acquisition and exhibition of the Pantheon marbles in London have ? But also and finally, what would be the consequences that the return of the friezes to their country of origin would have on the conflicts that other states are encountering, demanding the restitution of the goods taken from them under the occupation and the foreign colonies ? And more precisely, what about countries such as France, Austria or the Vatican State, which are cautiously waiting for the affair to settle down because they too hold pieces of the same frieze ? Diplomatically, everything could however go well. Seizing the opportunity to draw up a framework agreement between each of the countries aimed at returning all the marbles to Greece would improve or strengthen their relations. This agreement could stipulate that no damages could be claimed as a result in order to avoid the threat of an economic sanction. France, for example, has proof of the acquisition of the plots of the frieze dating from 1756, a sale that is in fact legal. Other elements of an economic nature could just as well be taken into consideration at the discretion of the States Parties. Each one of them could welcome it and it would be a great victory for Greece, which, from the point of view of Turkey, would be able to assert the nullity of the sale of the friezes to which it agreed with the English, even from a symbolic point of view.
We would like to think that this opposition has a real diplomatic basis, from a purely geostrategic point of view, that the Parthenon friezes become a highly sensitive representation for all stakeholders, in a context of geopolitical instability, characterized by another invasion violating the rules of international law superimposed, in the region, on the internal relations that Greece has had with Turkey for several decades. But on closer inspection, the motives may potentially be no higher than that. And it is one of the latest events that demonstrates this:
Greece, to celebrate the 200 years of the Parthenon, asked the British Museum to lend it the Parthenon friezes. The museum answered publicly that it would be willing to lend them if Greece recognized that they are the property of England, something that Athens has formally refused. To complete the picture, France has not issued any conditions for lending the works it holds. In the hypothesis that London agrees to lend the friezes to Athens, London would have no means of recovering the friezes from Athens since the means engaged is the one that London already uses against Athens, namely, the detention of the property of others. To deprive her of it would reverse the roles and it would become particularly perilous for England to prove that she is legally the owner of the friezes collected at the Parthenon. To this, it should be added that Athens has favored the diplomatic route for the settlement of its conflict, and has proposed a mediation of Unesco, the UN institution in charge of culture and education: an offer rejected by the British Museum. All the evidence suggests that the British Museum and the British state have no legal means of recovering the works in the event of a loan, nor any concrete proof that it can legally keep them. The British Museum’s position is infinitely more in favor of the economy than for the sake of art history. And if a cynical mind were to judge hastily the exactions of England against Greece, it might find an answer in the assumption that the remains of the Acropolis held by the British Museum have been partially or even totally destroyed. That such a determination not to return the property to its owner hides the fear of an implication of the English in the partial or complete destruction of a constituent of the world heritage of humanity.

 

Evaluation of the chances in a trial
Years before, we remember Melina Mercouri’s efforts to throw her weight around to get Greece’s property back. In vain. It is wise to analyse that after her, any attempt at friendly or diplomatic negotiations is a dead end.
Athens was able to argue before the British that the said empire did not represent its people as a prerequisite to invalidate the sale. It is not exactly that, the Greek state might claim the evidence that the British empire had (and still has) at its disposal to answer for the legality of the sale.
Otherwise, and on the basis of the stated assumptions, the United Kingdom has every interest in never agreeing to return the Parthenon friezes. The only legal basis for Athens to recover its property at this time would be to take up the case on the grounds of violations of property rights as defined by international law.
Several cases, in the past and in progress, have been investigated on this ground, which concerns in particular the plundering of private property swelling the Nazi treasury during the Second World War. We can refer here to the claim made to the German government by American Jewish descendants of parents born in Germany to retrocede the Guelph treasure, without the problem of territoriality that it entails.
From a legal point of view, it is surprising that no legal action has yet been taken. Even to remove the doubt that the Parthenon friezes still exist in their original state. As a result of the failed mediation by UNESCO, there is every reason to believe that Greece would be justified in seeking justice from the competent court to assert its efforts (including through diplomatic channels) to recover archaeological elements taken from its soil. What is already a textbook case of diplomatic and political entanglement would then become a precedent, and would entail consequences in art history, whatever the answer given by the court. In doing so, Greece has everything to gain (including in terms of image) since public opinion seems to be all in favour of it.
To conclude, what to make of the scandal revealed recently of the deterioration of the Parthenon friezes by the British Museum ? A quick reminder of the facts, in 1937, a person outside the museum (once again, this makes it clear that the British have a unique perception of property value), patron and art dealer, financed and ordered the cleaning of the friezes with abrasive products. This, in order to remove the pollution deposited since the industrial era in London. Deteriorating the property, this cleaning operation has been suspended. Upon examination of the antique marbles, an expert appointed by the court would be able to evaluate an amount in reparation of the damage suffered. To fix an amount from a creation of Phidias which has no price could doubly set a precedent.

 

Emilie LE BON
Jurist in International Law & Economics
All reproduction prohibited

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