APPENDIX 34
Memorandum submitted by the Committee
on the Parthenon
1. PREFACE
1. We are tremendously pleased that the
matter of the Elgin Marbles is to be considered by the Parliament
as the legally competent body to decide their fate. We pledge
our support for all efforts by the Committee to conduct a thorough,
authoritative examination of all aspects of the issues of return.
We offer this statement to contribute to a fresh and impartial
proceeding as we continue to search for consensus on the appropriate
stewardship of the Marbles.
1.1. The Committee on the Parthenon commends
the Committee on Culture, Media and Sport and the entire Parliament
for its role throughout the history of the Parthenon Marbles.
In the example of Pericles opening the Funeral Oration, as recorded
by Thucydides, "I shall speak first of our ancestors . .
. "1
1.2. The Institute for Law and Culture is
grateful to your ancestor, The Duke of Wellington, whose actions
on behalf of the Allied occupationary forces in Paris in 18142
created some of the first modern ideas regarding the protection
of cultural property in armed conflict (hereinafter "Wellington
Principles", Paragraph 7 below).
1.3. The Committee on the Parthenon is grateful
to your predecessors, the Parliament of 1816, for purchasing the
Marbles from Lord Elgin. As stated in the Report and Debate of
the House of Commons, (hereinafter "Report")3 there
was great concern that, otherwise, Lord Elgin would of necessity
sell the Marbles, in whole or in part, to the best offeror. In
spite of the challenges raised to Lord Elgin's right to remove
the sculptures, it was not demonstrated that Lord Elgin could
not still sell them. Surely then, the Marbles might have been
dispersed. The 1816 House of Commons ensured that the Parthenon
Sculptures removed by Lord Elgin would remain together and in
the public domain.
1.4. Today, the Committee on the Parthenon
is grateful to you for your willingness to undertake this controversial
matter of global interest and examine anew the ramifications of
this unique issue.
1.5. The Institute for Law and Culture
1.5. The Institute for Law and Culture is
a non-profit organization,4 created for the ongoing study and
advancement of the Law of Cultural Heritage and related subjects,
for the in-depth study and legal analysis of issues such as art
trade, art claims, art reparations, and cultural aspects of armed
conflict.
1.6. The Institute's Articles of Incorporation
are filed in the nation's capital, Washington, D.C., and includes
the Committee on World War II Art Claims and the Committee on
the Parthenon. The Committee on the Parthenon has separate Articles
of Incorporation and enjoys not-for-profit legal status.
1.7. The Committee on the Parthenon
1.7. The Committee on the Parthenon5 is
a non-profit organization,6 which was founded to foster scholarship
and public information on the Parthenon and for the ongoing study
of the aesthetic and historical aspects of the Parthenon and related
art, including historical and artistic analyses, and to operate
as a research centre for the study of the Parthenon.
1.8. The Committee on the Parthenon is dedicated
to the aesthetic integrity of the Parthenon and as a matter of
public policy, works for the return of the Parthenon Marbles by
public information, communicating with public policy makers, and
other activities in the United States and in co-ordination with
other Committees abroad. While other Committees (British, Australian,
Canadian) were established solely for the purpose of the restitution
of the Marbles, reunification of the Parthenon Marbles is one
or our main interests.
1.9. The Committee on the Parthenon (also
sometimes called "the US Committee") of the Institute
for Law and Culture is to be distinguished from The British Committee
for the Restitution of the Parthenon Marbles and/or the "[Australian]
International Organizing Committee for the Restitution of the
Parthenon Marbles". The Committee on the Parthenon, and its
positions, are independent and distinct from other Committees
which were formed solely for the purpose of return of the Marbles.
1.10. Membership of the Committee on the
Parthenon is open to all interested persons in the United States
and is not a Greek-American society. In addition to a general
membership category, the Committee has Advisory Boards—one
of which reflects the support of the Greek-American community
in the United States for the cause of reunification of the Parthenon
Marbles and for all aspects of scholarship on the Parthenon.
1.11. The Advisory Board of Hellenic American
Organizations includes the leaders of the three prominent Hellenic-American
societies, the American Hellenic Institute (AHI), the American
Hellenic Educational Progressive Association (AHEPA), and the
Hellenic American Women's Council (HAWC). The combined membership
of those groups exceeds 20,000 persons. The Board of Authorities
and Academics includes archaeologists, architects, artists, art
historians, and authors. The Board of Eminent Persons was established
by the former Archbishop Spyridon of North and South America to
include public officials and public figures. We are in the process
of reconstituting this group as well.
2. A GLOBAL ISSUE
2. The matter of the Parthenon Marbles is
not a Greek-British issue, but, rather, a question concerning
the United Nations, the United States, and all the world's cultures.
Since the European Renaissance, the Parthenon, including its marble
sculptures, have become the international symbol for enlightened
cultures and of democracy itself. From the major government buildings
of all Western democracies, to the emblem of the United Nations
Educational, Scientific, and Cultural Organization (UNESCO), the
Parthenon is the recognized symbol of democracy and freedom. The
international and US cultural community strongly supports the
reunification of the Marbles by Great Britain to Greece.7 While
the Committee on the Parthenon remains prepared to discuss all
the elements of the original removal of the Marbles by Lord Elgin
in the early 19th Century, we do not base our thesis for return
on the issues of removal.
2.1. The United States
2.1. The Committee on the Parthenon has
served as the primary catalyst in building public awareness and
governmental support for the restitution of the Marbles. In this
effort, the Committee on the Parthenon co-ordinates closely with
senior Congressional leaders and members of the Foreign Relations
Committees, including Congressman Donald M Payne (D-NJ).
2.2. Congressman Payne has prepared legislation
to express Congressional interest to the British Parliament that
the Parthenon Marbles should be reunited with the Parthenon in
time for the 2004 Olympics. Last year, Congressman Payne personally
briefed President Clinton on this issue in great detail prior
to the President's trip to Greece.8
2.3. In Greece last autumn, President Clinton
stated his unequivocal support for the reunification of the Parthenon
Marbles, and endorsed the international and US view that the Marbles
should be reunited with the Parthenon temple. Shortly thereafter,
a similar announcement was made by Prince Charles. The support
of Prince Charles for the cause of the Parthenon Marbles is consistent
with his well-recognized interest in protecting the architectural
cultural heritage of London—among similar programmes. It
appears that President Clinton's declaration has begun a new global
momentum on behalf of the Parthenon.
2.4. A recent briefing memorandum9 supplied
by the British Ministry of Culture alleged "Our Embassy in
Athens was informed by the US Ambassador to Greece that the tour
of the Parthenon by President Clinton and his daughter Chelsea,
was intended to be a private affair. The Greek Minister of Culture
just appeared out of the blue, gave the usual incorrect Greek
version of events and bounced him with an unexpected question.
Any views expressed by the President were personal and not the
US Government line".10
2.5. First, as the statement submitted to
you by Congressman Payne will confirm, Congressman Payne had personally
advised the President, in more than one meeting, on the matter
of the Parthenon and the Marbles. Second, it is therefore incorrect
to suggest that the President of the United States was "bounced"
by an unexpected question. The foreign policy authority of the
President of the United States is granted by the US Constitution11
(Article II, Section 2, Clause 2) which is generally considered
as the Treaty Power. We shall leave to the reader the weight given
to statements, including those couched in personal terms, by the
President of the United States and their implications to the official
foreign policy of the nation.
2.6. International
2.6. Global interest in the matter of the
Parthenon Marbles has been widely known for many decades but has
intensified in recent years. Over the years, UNESCO has worked
to open a dialogue among the parties to work toward return of
the Marbles.12 In January 1999, the European Parliament13 issued
a strong declaration in support of the return of the Marbles.
By an unprecedented margin the European Parliament supported a
Declaration calling on the British Government to give positive
consideration to Greece's request for the return of the Elgin
Marbles to their natural site.14
2.7. The United Kingdom
2.7. In the 184 years since the vote (hereinafter
"Vote")15 for the purchase of the Marbles in 1816, British
public opinion has mounted steadily toward the current support
for reunification of the Parthenon Marbles.
2.8. When Alfred Lomas, a London Member
of the European Parliament, presented the petition (see Paragraph
2.6. above) for signature, it was supported by 35 per cent of
the British delegation to the European Parliament.16 Those results
could be added to numerous other reports of support among the
British people for return of the Marbles. The first was a 1996
BBC phone-in poll, after a documentary on the Marbles, and the
result was 92.5 per cent of the 99,340 people who called in said
they supported return of the Marbles to Greece.
2.9. The subsequent MORI poll in September
1998, brought a public response of 39 per cent pro-return and
15 per cent opposed while 28 per cent were undecided.17 Only 15
per cent of the British adult population recalled having seen
the Parthenon Marbles at the British Museum.18 That result stands
as a stunning denial of the British Museum's claim that the Parthenon
Marbles (after 197 years in London out of their 2,430 years' history)
have come to be regarded as an integral part of the British culture.
2.10. In Parliament, 112 Members of the
House of Commons offered a position on the issue of the Parthenon
Sculptures in an Early Day Motion (No. 212)19 of 19 January 1999.
The Motion suggests that any possible precedential effect could
be averted if the Marbles were returned as a "gesture of
goodwill"20 [that is as a matter of public policy rather
than law] and calls for the entry into "discussions with
Greece on the restitution of the Parthenon Sculptures."21
2.11. Most recently, the Economist magazine
published its own poll22 including Parliament. In the House of
Commons, the results indicated support for return of the Marbles
by a vote of 66 to 34.23 In the House of Lords, the results were
41 supporting and 59 opposed to reunification of the Parthenon
Marbles.24 The most salient point in the detailed Economist
report is "If there is to be any change in the present
status of the Elgin Marbles, it will not be brought about . .
. legal action . . ."25
2.12. The Parliament of the United Kingdom
is now clearly recognized as the sole authority in this matter.
Should Parliament believe it is faced with a dilemma? Parliament
can look to its own history—as in the Wellington Principles
(see paragraph 7 below) as well as to its future (see paragraph
10 below) for guidance in addressing this challenging question.
3. A UNIQUE MATTER
3. The matter of the Parthenon Marbles is
unique on two levels. The first is the subject matter—the
character and essence of the Parthenon itself and its value to
the world. The second is the unique period of time in which the
removal took place (see paragraph 4 below).
3.1. The Parthenon was built nearly 2,500
years ago by the original Periclean democracy commemorating the
successful, free Greek defence from invasion by the Persian Empire.
The preponderance of work written about the Parthenon and the
Parthenon Marbles describes each as unique from every analysis.
3.2. Pericles, the leader of the Greek Government,
commissioned the greatest Greek architect and sculptor of the
time (Praxiteles and Phidias)26 to weave together the architectural
and sculptural elements of the temple into an integrated whole.
The completed temple was dedicated to Athena, goddess of Wisdom,
in 439 BC. The Parthenon and the Marbles had remained intact (but
for tourists and local vandalism) until they were removed by Lord
Elgin (then British emissary to the occupying Ottoman Empire in
Athens) to London over 2,240 years later, under circumstances
of debatable legality.27
3.3. The Parthenon is the pre-eminent symbol
of art and learning to the world as exemplified by UNESCO, and
the symbol of democracy—as demonstrated by its adoption
by design of other government and official buildings (especially
in the United States, including the Lincoln Memorial and innumerable
monuments). Over the centuries, the Parthenon has always been
a place of worship including pre-Christian worship of Athena,
Orthodox Christian, Catholic, and Muslim.28
3.4. "If there is one icon . . . that
stands for ancient Greece and its leading city-state of the fifth
century BC Athens, it is the Parthenon . . . It is seen as standing
for purity, beauty, and even a form of moral and intellectual
integrity. It is proclaimed as the crowning achievement of the
society which founded Western civilization."29
3.5. The Parthenon Frieze is a unitary panel
of sculpture depicting the Panathenaic Festival30. The Parthenon
Marbles or Parthenon Sculptures refer to those parts of the Parthenon
Frieze (situated on the inner row of columns) dismembered and
removed to London by Lord Elgin31 over the period 1801-1816. The
Sculptures originally numbered 115 panels in the Frieze, of which
94 are known to exist, in whole or in part. Thirty six (36) are
in Athens and fifty six (56) are in London (one is in the Louvre)32.
3.6. This does not reflect the magnitude
of the entire "Elgin Collection". A detailed inventory
was conducted as part of the 1816 Report33 to Parliament. The
Catalogue of the "Elgin Marbles" included the following
inventories.34
A. Pediments of the Parthenon—17 items
C-G. The Frieze[s]—39 items
H-K. "Fragments" from the Parthenon
and other Buildings, including the Erekthion—29 including
a Charyatid
L. "Detached Heads"—13 items
M. "Detached Piece[s] of Sculpture"—34
P. "Sepulchral Pillars"—13
R. "Greek Inscriptions"—66
S. Drawings—5 (including series)35
3.7. "Time and chance have determined
that the Parthenon and its sculptures are the most fully known
. . . of all the monuments of Classical antiquity that have survived.
Our view of Classical Greece is conditioned by them, [ . . . ]
The architecture and sculpture are the best that were created
[ . . . ]. It embraces the beginnings of organized religious life
in Greece and of Greek religion. [ . . . ] the absorption into
Greek life and thought of foreign ideas and arts; the history
of architecture and sculpture; the development of the narrative
and symbolic functions of myth; the physical, political, economic,
social and military history of Athens itself."36
3.8. A unique claim
3.8. The matter of the Parthenon Marbles
is unique because (a) the removal was by a private individual,
(b) not acting under colour of law, (c) outside the sphere of
armed conflict, and whose acts (d) would not qualify as common
theft. We have yet to know of a parallel case whose outcome could
be influenced by resolution of the matter of the Parthenon Marbles.
It is unique among all significant contemporary cultural property
claims because the removal was not incidental to armed conflict
or colonization as recognized by international law; or common
theft as recognized by the laws of states. While the Ottoman Government
in authority was a force of occupation, the rights of occupiers
to cultural property (see paragraph 5.11 below) has only become
a factor to be considered in recent years, most significantly
with the 1954 Hague Convention for the Protection of Cultural
Property.37
4. THE FULLNESS
OF TIME
4. The tragic timing of the removal of the
Parthenon Sculptures has proven to be the most significant quality
of the legal debate. At the time of the taking—in 1801-1816,
the people of Greece were striving in earnest to regain their
independence. The Parthenon Marbles were purchased from Lord Elgin
by the British Government on the eve of the war for independence
which was won by Greece in 1830. The following are the pertinent
facts regarding the time of Lord Elgin's seizure of the Parthenon
Sculptures. On both levels, the removal of the Parthenon Sculptures
closely preceded international and national laws protecting cultural
property.
4.1. Unique issues and tragic irony
4.1. A critical aspect of the purchase of
the Parthenon Sculptures by Parliament is that by so doing, Parliament
preserved the Marbles from sale elsewhere and from being dispersed.
Along with that claim is the more curious conjecture that Elgin's
removal saved the Marbles from Napoleon's legions. Let us explore
that question.
4.2. It is not likely that Napoleon would
have received such a firman (see paragraph 5.8 below), as had
Elgin, for political reasons. However, had Napoleon included Athens
in his conquests, there is wide agreement (including on the part
of this writer) that the Parthenon would have been an immediate
target for the Louvre. In such a case, we can presume, or imagine,
the following: (a) more programmatic removal of selected items
or sections, (b) official, possibly more secure transport overland
or in military frigate, and (c) encasement in the Louvre upon
arrival. Those facts can be contrasted with the actual (a) amputating,
rapacious axing, and hacking off of parts in the dismantling of
the architectural sculptures by Elgin's men, (b) terrifying transport
on the Mentor (a ship purchased by Lord Elgin when his request
for the use of the British navy was rejected) which soon sank
and only Greek sponge divers managed to recover most of the pieces,
and (c) ignominious storage in a constructed shed and alley until
the Marbles were finally transferred by the British Parliament.
4.3. Following the logical progression,
we proceed to the Wellington Principles (see paragraph 7 below).
In reliance on historical records about the position of the Allies
in Paris, we know that Napoleon's plundered art was repatriated.
So, as an exercise in irony we can wonder: if Lord Elgin had not
"saved" the Marbles from Napoleon, if they would have
been returned to the Acropolis that year by Wellington.
5. LEGAL ANALYSIS:
THE PROPER
FORUM
5. Ever since Greek liberation from the
Ottoman Empire in 1830, Greeks and Hellenophiles around the world
have been striving to secure the return of the Marbles. Yet where
could they take their claim? It has always been clear that legal
authority over the Elgin Marbles within the United Kingdom rests
solely with Parliament. This was established in the first instance
by the purchase of the Marbles by Parliament38 on behalf of the
nation. Although Parliament then transferred the Sculptures to
the British Museum, the bill clearly carried the authority of
Parliament. Any doubts as to the legislative intent of that Act
were addressed by the British Museum Act39 of 1963 which prohibited
the Museum from alienating its holdings.
5.1. Framing the Issue
5.1. On the level of legal precedent—for
those in common law legal systems (as in the United Kingdom and
the United States)—there must be a predicate legal decision,
ie a ruling by a court of law and only thereafter could the decision
present a legal precedent to the extent that future courts might
admit. It necessarily follows, from the simple fact that the matter
of the Parthenon Marbles, with the facts as are known to date,
does not comprise a legal claim which can be presented in a court
of law, that any settlement by Parliament of the claim, on a non-adjudicatory
basis, cannot create a legal precedent.
5.2. In the era of World War II art restitution
and replevin, there has been no credible objection on the basis
of precedent. Even though many cases are resolved in the courts,
they still cannot serve as precedent without the requisite nexus
of facts and issues. The uniqueness of the matter of the Parthenon
Marbles precludes such precedential value.
5.3. On the level of the court of public
opinion, every return of cultural property has potential implications
for other claims. However, there has been no hew and outcry that
a dangerous precedent would follow recent returns of cultural
properties sent back to countries of origin by museums in the
United Kingdom, such as the return of the Stone of Scone to Scotland
in 1999.40
5.4. International Law
5.4. Historically, until the 19th Century,
cultural property, monuments, and places of worship had been viewed
as legitimate pawns of armed conflict.41 Treaties protecting cultural
property did not enter the international arena until after Lord
Elgin had transported the Parthenon Sculptures to England. The
greatest single turning point in the treatment of cultural property
under international law occurred upon the conclusion of the War
of 1812 when the Duke of Wellington administered the first programme
of post-conflict replevin of cultural property to nations of origin.42
5.5. An immediate problem arises in a legal
analysis of the issue of the Parthenon Sculptures under British
law because the United Kingdom has traditionally defined "cultural
property" as movable cultural goods and primarily concerns
questions for issuance of export licenses for works of art and
cultural property as administered by the Department of National
Heritage.43 The Parthenon Sculptures were never meant to be, nor
were they constructed to allow them to be, movable decorative
art. "The sculptures of the Parthenon were an integral part
of the total design."44
5.6. Legal analysis using legal principles
of cultural property
5.6. International Law—The advent
of contemporary concepts of the international legal status of
cultural property came with the 1899 and 1907 Hague Laws of War,45
and became a settled theory of international law with the 1954
Hague Convention for the Protection of Cultural Property in the
Event of Armed Conflict46 (to which 95 countries are now parties,
with the notable exception of the United States47 and the United
Kingdom).48 Only in 1954, the Hague Cultural Property Convention
first delineated the rights and duties of occupation forces vis-a"-vis
cultural property in armed conflict.49
5.7. Legal Analysis of the Legality of the
Taking50
5.7. The issues regarding the removal of
the Parthenon Sculptures by Lord Elgin concern three themes. The
first is the firman51 (translated as "official letters
of permission")52 which gave Lord Elgin access to the Parthenon
to conduct his operations.
5.8. The Firman[s] (Original and subsequent)
5.8. Although the only legally competent
authority to interpret the firman[s] and to determine whether
Lord Elgin had indeed exceeded the intent and licence of the documents,
would be the successor government to the Ottoman Government of
the time, (ie Turkey), Professor Merryman53 correctly points out
that acquiescence of the local authorities during the execution
of the enterprise would appear to indicate the extent to which
the Ottoman authorities would allow interpretation of the firman.
Even though Turkey54 has recently indicated a willingness to assist
Greece in this matter, only a renunciation of the firman,
with an explanation of the apparent acquiescence to Lord Elgin's
implementation of it, could alter the current legal significance
of the firman[s] in any meaningful way.
5.9. The legal authority of the Ottoman Government
5.9. Claimants for return of the Parthenon
Marbles may rightly offer that the Ottoman Empire was a force
of occupation in Greece at the time and that, even as Lord Elgin
was transporting the Marbles, Greeks were preparing to move once
again for independence—which did succeed in 1830. The writer
is not aware of any reputable authority who suggests that Lord
Elgin would have been given any such permission by a Greek Government
(see Firman, Paragraph 5.8 above). However, at the time
of the removal of the Parthenon Sculptures by Lord Elgin, Great
Britain and the Ottoman Empire had diplomatic recognition which
legalized all official acts as between them and their legal systems,
making questions regarding the occupier's rights55 a 20th Century
concept inapplicable to a 19th Century event.
5.10. Bribery
5.10. There has been extensive discussion
of the potential legal implications of the bribes paid by Lord
Elgin and his agents to local authorities. This is another example
of applying 20th Century legal concepts from the common law to
a 19th Century activity and a distinctly different legal culture.
First, the "bribes" were open and accounted as expenses.
This would go to the question of intent and the minds of the parties
in the transaction. Such open accountancy would not reflect questions
of irregularity such as if bribes were not accepted in the legal
environment of the time (Ottoman-controlled Athens 1801-1816).
The payment of bribes would be suggestive of the state of mind
of Lord Elgin, that is his own perception of the quality of his
acts. However, as the 1816 Parliamentary debate56 reveals, Lord
Elgin had no compunctions about the payment of bribes as called
for by the situations.
5.11. As Professor Merryman57 has repeatedly
affirmed, while Lord Elgin's actions may be deemed immoral, they
were not illegal under the national or international law of the
time. Without a legal claim regarding the actions of Lord Elgin,
all study of the matter leaves the courtroom and returns to the
legal jurisdiction of the Parliament.
5.12. The question of a legal precedent
5.12. As a unique claim, with unique subject
matter, there can be no legal precedent. The most effective argument
against reunification of the Parthenon Marbles has been the obfuscation
perpetrated under the claim that a precedent would be established
which would reverberate throughout the museums of the world and
all museums would be emptied in rapid succession. None of the
arguments against return is more insupportable, but even if taken
at face value, this could be addressed in legislative language.
5.13. Finally, Parliament should explore
means to avert any potential legal precedent created by return
of the Parthenon Marbles by including exculpatory and advisory
language in such implementing legislation. By establishing such
a legislative history, the claims (however incorrect) that a legal
precedent could result could be precluded within the document
itself (see Early Day Motion, paragraph 2.8 above).
5.14. The role of the British Government
5.14. Although Lord Elgin did seek pecuniary
support from the British Government for this project prior to
his trip to Greece, it was refused. Second, when Lord Elgin requested
use of British naval command to ship the Parthenon Marbles (over
80 crates) it was refused as well.58 The 1816 investigation by
the House of Commons59 reveals that while Lord Elgin tried to
avoid any admission that he had been permitted by the Ottoman
authorities to engage in this project because of his position
as the British Ambassador, the debate and interrogation were intense
on this issue. Lord Elgin did admit that no permission (even approaching
the extent of the liberty granted him) had ever been given to
anyone else. A reading of the questioning of Lord Elgin and his
answers does support the view that the permission was given to
Lord Elgin solely in the interest of enhancing British-Turkish
relations vis-a"-vis France. Moreover, whenever Lord
Elgin raised his assertion that his intentions were only the betterment
of the Arts in England, it was roundly disputed and this is where
discussions of involvement and/or participation of the British
Government ended.
6. THE BRITISH
MUSEUM
6. The British Museum and the British Museums
and Galleries Commission61 have taken the position that the Museum
does not have the legal right to return the Parthenon Marbles.
Examination of the Acts 181662 and 1963,63 read together, support
that assertion.
6.1. Any inquiry into the future of the
Parthenon Sculptures requires a careful review of the Act of 181664
which purchased them from Lord Elgin. An examination of "An
Act to vest the Elgin Collection of ancient Marbles and sculpture
in the Trustees of the British Museum for the Use of the Public"65
suggests that Parliament did not award the Collection to the British
Museum with all the rights of ownership but gave the Museum custody
alone, albeit into the future.
6.2. Article III of the 1816 Act reads in
part: "That the said Collection shall be preserved and kept
together in the said British Museum whole and entire, and distinguished
by the name or Appellation of `The Elgin Collection' [emphasis
added]". Article II reads in part "the said Collection
shall be vested in the Trustees for the time being of the said
British Museum and their successors, in perpetuity, for the purposes
of said Act . . . "66 Now that Parliament "vested"
the Collection in the Trustees that the Collection be cared for
and retained together, the necessary reading is that Parliament
did not fully alienate the Marbles but retained legal authority
over the Collection.
6.3. Any doubt about the legislative intent
of the 1816 Parliament to retain control is allayed by the British
Museum Act, 196367 which clearly prohibits the Museum from alienating
any part of its holdings. "Section 5. Disposal of objects,"
establishes strict guidelines for the alienation of holdings.
The language of the Section listing those conditions which must
be met for an object to be "sell [sold], exchange[d], give[n]
away or otherwise dispose[d]"68 appears to preclude "disposal"
of the Elgin Collection by the British Museum. The Act does not
address "disposal" by the awarding authority, which
in this case would be Parliament alone.
6.4. Interpretation of The Museums and Galleries
Commission
6.4. Most recently, the British Museums
and Galleries Commission stated in paragraph 19 of a memorandum69
"Primary legislation would be necessary merely to permit
the Museum to return the sculptures permanently to Greece."70
By this statement, the Museum is affirming that Parliament alone
holds the authority to direct the reunification of the Parthenon
Marbles. The next statement does not follow a logical progression.
6.5. Once stating the sole legal authority
of Parliament, the Commission warned, "However, even if we
were to change the law in order to permit the Museum to dispose
of the sculptures, the Museum could still refuse to return them
to Greece."71 This does not conform to their earlier statement.
First, it would not be the Commission ("we" above),
acting independently, which would enact the legislation but Parliament.
Second, Parliament is not shown to have any limits in that legislation,
ie, could not only "permit" the Museum to dispose of
the sculptures, but could certainly amend the British Museum Act
of 1963 to effect the reunification of the Parthenon Marbles.
6.6. The Cleaning Controversy
6.6. Recent press reports which detailed
the British Museum cover-up of the improper cleaning and resulting
irreparable damage done to the Marbles over 50 years ago, have
placed the Museum on the defensive. In an effort to counteract
increasing Parliamentary scrutiny, such as the current inquiry
by the Committee on Culture Media and Sport, the British Museum
conducted a symposium, "Cleaning the Parthenon Sculptures",
30 November-1 December 1999.
6.7. The subject of the British Museum Colloquium
was the quality of stewardship, not the question of retention.
Unfortunately, the conference fell into exchanges of aspersions
and emotional claims. Clearly demonstrated, however, was lack
of respect for the religious nature and cultural value of the
Parthenon Marbles when the Museum used the Duveen Gallery for
the luncheon, following shocking revelations on the marketing
of the gallery for lavish costumed events. This is disturbing
to all who respect the cultural heritage of other faiths.
6.8. The Parthenon Marbles are not mere
"statuary" or movable decorative art, but integral,
interdependent parts of a temple. The "sculptures" are
allegorical and sacred. The Parthenon Sculptures are ideally viewed
as the icon screen of Hellenic culture.
7. HISTORIC BRITISH
MILITARY POLICY—THE
"WELLINGTON PRINCIPLES"
7. The United Kingdom as an army of occupation
in Paris at the close of the Napoleonic Wars (1792-1815),72 presented
an innovative approach to the treatment of cultural property both
by an occupier and in peace treaties.
7.1. The Musée Napoleon (Louvre)
built to house the plunder of Napoleon's conquests73 (celebrations
of which were modelled on the Roman Triumph), began with the Fetes
de Victoires in 1798.74 Napoleon's art programme to amass all
noted art and a desire for respectability for the programme at
the same time. To accomplish both his goals, he first designed
his programme for art collecting with military precision, establishing
working teams of experts with stipulated accounting and reporting
procedures. Second, Napoleon presented a legal innovation to legitimize
his programme by demanding official transfer documents from the
conquered governments.75
7.2. "It was assumed to be offered
the spoils of each country as it was overrun. This was to be carried
out by teams of specialists sent out from Paris or recruited on
the spot.76. . . (On 16 October 1794) the Commission Temporare
des Arts had appointed a sub-committee of four members to compile
full information concerning works of art and science to be found
in countries which the republican armies were expected to invade."77
Napoleon's pattern of demanding the official transfer of art by
conquered governments was fully implemented throughout his campaigns.
An example was Napoleon's treaty with Italy, 6 May 1796,78 which
stipulated the transfer of 20 paintings to be chosen by the commanders.
7.3. French public support was so great
for Napoleon's Louvre project, that at the Convention of Paris
on 3 July 1815,79 the French negotiators anticipated the restitution
provisions and offered a clause "to guarantee the integrity
of museums and libraries"80 attempting to secure their right
to retain art seized in the Napoleonic Campaigns. The Allies roundly
refused and proceeded to order the return of all items seized
by Napoleon. The Duke of Wellington, speaking for the Allies affirmed
that art looting violates the laws of war.81
7.4. "It was Wellington's opinion that
the Allies could not do otherwise than restore them (Napoleon's
plundered art) to the countries from which, contrary to the practice
of civilized warfare, they had been torn during the disastrous
period [ . . . ] the tyranny of Buonaparte."82
7.5. The allies then began a programme for
restitution including a private agreement with Louis XVIII (whom
the Peace treaty restored to the Throne)83 for return of all looted
articles. Under Wellington's command in Paris, the Quadriga taken
from the Brandenburg Gate was returned.84 1814 was a year of returned
national treasures: the Pope regained his archives on 19 April;
the Paris Archives returned documents and regalia to the Papal
States on 27 April; the Dutch Ambassador demanded return of art
seized from the Netherlands on 18 September; Metternich demanded
return of Austrian and Venetian items on 5 August; and Austria,
England and Prussia demanded all official property returned at
once on 20 September.85
8. RECOMMENDATIONS
AND RESOLUTION
8. Having explored the important issues
surrounding the question of the Parthenon Marbles, the question
now before the Committee is how to resolve this dilemma—the
rights of the possessor against the rights of the creators. Once
again, we can say that the answer lies within the historical and
legal principles of the United Kingdom.
8.1. Historic and Legal Principles
8.1. The first are the historic Wellington
Principles, (See paragraph 9 above). The second are standards
for the future as issued by the UK Museum and Galleries Commission,
Restitution and Repatriation: Guidelines for Good Practice,87
(hereinafter "Guidelines") and even the MGC Statement
of Principles on Spoilation.88
8.2. By any reading, the Guidelines of the
UK Museums and Galleries Commission lead to reunification of the
Parthenon Marbles. Specifically, the following sections lead the
analysis to the same inevitable conclusion. Most salient of the
Guidelines are considerations of "Opportunities for comparative
research at one central point".89 (In this case, that would
be Athens) and "Need to move forward while acknowledging
past history."90
8.3. Under "Arguments that Favour Return,"91
there are two sub-divisions pertinent to the matter of the Parthenon
Marbles. They are "New approaches to professional practice
in scientific research, archaeological excavation and museum activities,
which recognise others' rights to control cultural material and
knowledge,"92 and "Acknowledgment of past wrongful taking
and/or misunderstandings of complex customary ownership concepts,
and attempts to redress."93
8.4. The Parliament of 1816 could not return
the Marbles to the Greek people, but they did agree on the best
solution available to them at the time. Unfortunately, the Act
did not include any options for the future and the future arrived
very soon thereafter when Greece recovered her independence in
1830. Today the Parliament has the ability to accomplish what
the Parliament of 1816 could not do—reunify the Parthenon
Marbles in the custody of its only national heirs.
8.5. Quid pro quo—Will the Marbles
be reunited?
8.5. During a 1998 conference in Washington,
DC attended by this author, Professor Merryman94 asserted that
the Marbles be returned to Greece and said all that remains would
be the conditions. Professor Merryman opined that there might
need to be a gesture by the Hellenic Republic—a quid
pro quo. As a term of law, quid pro quo carries a connotation
of equal value or comparable standing to verify the evenness of
an exchange. The following are the two-part question which was
posed by the author to Professor Merryman and his response.
8.5.1. First, is it your understanding that
there is any part of the cultural patrimony of Great Britain currently
being held by the Hellenic Republic? If so would you please indicate
it so that the Government of the Hellenic Republic can return
it forthwith?
8.5.2. Second, what is there of comparable
artistic and historic value which Greece could donate to the British
Museum as a like-kind-exchange?
8.5.3. Professor Merryman very graciously
acknowledged that there most likely was a) neither British cultural
property in the control and possession of the Hellenic Republic
nor b) Greek cultural property which would be of sufficient artistic
and historic value to reach the status of a quid pro quo.
The question was left open what the Hellenic Republic could offer
to fill the position of the Parthenon Sculptures.
8.6. The Committee on the Parthenon does
not suggest that the Hellenic Republic should feel an obligation
to contribute to the richness of the collections in the British
Museum but does agree that such an endowment would be both desirable
and productive (See paragraph 9.9 below).
9. Dialogue and Negotiations
9. Clearly, the dialogue must be commenced
before terms are presented. Then, it is up to the authority in
possession to state its terms. If the British Museum believes
it can make out a case that the Marbles would not be appropriately
cared for by Greece, the Museum should be given an opportunity
to prove their claim, including stating with specificity the criteria
it believes the Greek Government should meet in order to receive
the Marbles.
9.1. The Guiding Principle should be the best
interests of the Marbles
9.1. The only appropriate course for the
Committee, if consensus for return of the Marbles is not clear
as a result of this inquiry (if not before), is to carry on the
tradition of the 1816 Parliament and conduct a separate inquiry.
That inquiry should examine the principles outlined above from
the MGC Guidelines as well as the Wellington Principles.
9.2. If possible, a commission should be
appointed not only of the parties but, in the way UNESCO has offered
to provide their own good offices in the past. The composition
should be independent, that is dedicated only to the best interests
of the Marbles, artistically, historically, philosophically, and
physically. To the extent that economic interests are raised,
a separate independent accountancy study should be completed to
reach the proper economic solution. (see paragraph 9.7 below).
9.3. Each party must come to the negotiations
prepared to state its terms and the first speaker on this issue
must be the authority in possession (Parliament) after consultation
with the custodian (the British Museum). In fact, if there is
one aspect of the debate that has been the most fruitless it is
the repetition of terms offered by the Greek Government in the
absence of any pertinent negotiations.
9.4. Factors to be Considered
Models—Other recommendations have been
presented including such as donation (or exchange) by the Hellenic
Republic or providing exact replicas for the Marbles for the use
of the British Museum. This is certainly a worthy idea, especially
considering it is our understanding that the British Museum has
already made casts and copies of a great many. Most important
are issues of the physical dwelling and care which the Greek Government
should have in place before a recommendation for return of the
Marbles could be implemented.
9.5. The Acropolis Museum
Such a meeting would be the appropriate time
and place for the British Museum to raise, and open to discussion
by the deciding body, all the concerns the British Museum is alleged
to hold about the design of the Museum being constructed in Athens
to house all the Parthenon Sculptures and to display them in relation
to the Parthenon structure and Acropolis.
9.6. Economic Considerations
Opponents to reunification of the Parthenon
Marbles often raise an objection on economic grounds. For example,
should the people of Great Britain be compensated for the price
of purchase? If so, and this a credible position, the economic
involvement of the British Museum should be gauged alongside and
to include the amounts by which the Museum has been aggrandized
as well as the damage done to the Marbles under its custody, if
not during their removal. The Committee on the Parthenon is certainly
not opposed to an economic analysis so long as all appropriate
elements are taken into account in the process.
9.7. Other Claims by Greece
The Committee on the Parthenon strongly opposes
any suggestions that the Hellenic Republic should agree to forego
any and all other claims to cultural property within the United
Kingdom for legal as well as ethical reasons, including the following.
9.8.1. If the decision to reunify the Marbles
is made on the merits—as the Greek Government certainly
has asserted all along—then there should be no reason to
offer up other indeterminable property.
9.8.2. The Government can only pledge as
to its own claims—not private claims of any other party,
or a party outside the jurisdiction of the Hellenic Republic.
9.8.3. How can the Greek Government know
what other claims may arise in the future and of what nature?
Hence it would be an illusory promise.
Exchange(s) or Shares
9.9. In consideration of the breadth of
the "Elgin Collection," (see paragraph 3.6) perhaps
there could be some negotiated settlement among those parts of
the aggregate outside the sacred frieze.
9.10. Once again, the recommendation of
the Committee on the Parthenon is that the British Museum and
Parliament are in the superior bargaining position and the sole
position to state such terms.
RESOLUTION
10. It is critical for opponents of return
to prove the merits of their position. Then, on balance, the Committee
should weigh those principles of possession against those of repatriation.
For example, the British Museum is often cited as believing it
would be unfairly affected by de-accession of its primary attraction
and profitable property. These concerns should be raised as part
of the economic analysis described.
Essential elements of the Parthenon
10.1. The Parthenon is not just a symbol
of Greek culture but is the world's cultural symbol. As the world's
temple, its dismemberment must be corrected—it must be made
whole again. Although the Marbles were removed from the Parthenon
under questionable circumstances, we believe the Marbles should
be replaced at the Parthenon on the merits, that is, based of
the essence of the Parthenon.
Conclusion
10.1. How shall history view the treatment
of the Parthenon Marbles by the United Kingdom? This Committee
on the Parthenon has offered the preceding thorough analysis of
the pertinent and legally significant aspects of the matter of
the Parthenon Sculptures. Having explored the important issues
surrounding the question of the Parthenon Marbles, the question
now before the Committee is how to resolve this dilemma—the
rights of the possessor against the rights of the creators. Once
again, we can say that the answer lies within ourselves, that
is within the historical and legal principles of the United Kingdom.
10.2. With the studied advice and counsel
of the Committee on Culture, Media and Sport, The parliament of
2000 can accomplish what the Parliament of 1816 could not—reunify
the Parthenon temple. When the world observes the return of the
Olympics to Greece in 2004, so should the world be able to witness
the Marbles restored to the Parthenon. More importantly, the Parthenon
Marbles should be reunified at the Acropolis, at the latest, as
soon as the Acropolis Museum is complete so as to safely transfer
and house the Parthenon Marbles.
10.3. There is no force greater than an
idea whose time has come.
There could be no finer or more meaningful gesture
on the part of the United Kingdom, as a world leader and forerunner
of the modern, European Community and to the world cultural community,
in the spirit of cultural unity, than to reunify the Parthenon
Sculptures.
Authentication
10.4. This is a fair and accurate research
and analysis completed to the best of my knowledge and ability.
ENDNOTES
1. Pericles [494-429 BC], Thucydides, Book
II Line 36, Loeb Library at Vol I, CF Smith, trans, The Loeb Classical
Library, Harvard University Press, 1989.
2. Christopher Hibbert, Wellington, 1997,
199-201 infra.
3. III Reports from Committees Ch 161 (1816),
Report from the Select Committee on the Earl of Elgin's Collection
of Sculptured Marbles, [hereinafter "Report"], 3-77.
4. 501(c)(3).
5. aka "The International Committee
on the Parthenon".
aka "The US Committee on the Parthenon".
aka "The Committee for the Restitution
of the Parthenon Marbles".
6. 501(c)(3).
7. John Henry Merryman, Thinking About the
Elgin Marbles, 83 Mich L Rev 1881, infra.
8. A separate statement by Congressman Payne
confirms that there is no truth to allegations that the President
was pressured by Hellenic-American organisations into his position
on the Parthenon Marbles and Congressman Payne is prepared to
respond to questions by the Committee regarding those communications.
9. Parthenon Sculptures, background (hereinafter
"memorandum") [Briefing Memorandum submitted to Nine
Network Australia for a 60 Minute programme on 27 February 2000],
copy obtained by the Committee on the Parthenon. See also, PressOfficer@culture.gov.uk.
10. Id at paragraph 18.
11. US Const art II Sec 2 cl 2.
12. UNESCO Holds Conference on Return of
Cultural Property ("topping the Committee's agenda is the
controversy . . . ownership of the Parthenon Marbles."),
Agence France Presse, 25 January 1999, International News.
13. Elgin Marbles "Now EU Issue,"
Birmingham Post, 19 January 1999,9.
14. Anthi Poulos, European Parliament declaration
urges Great Britain to return the Parthenon Marbles, http://www.uk.digiserve.com/mentor/Marbles/campaign.
15. 34 Parl Deb HC (1st ser) 1027 (1816)
at 1040 (hereinafter "Vote").
16. Greece Hopeful for Repatriating Art,
United Press International, 19 January 1999, BC Cycle.
17. Id.
18. UK Opinion Poll backs return of Marbles
to Greece, http://www,uk.digiserve.com/mentor/Marbles/campaign.htm.
19. Early Day Motion (hereinafter "EDM")
No. 212: Parthenon Sculptures, 19 January 1999, http://edm.ais.co.uk.
20. Id.
21. EDM, supra note 18.
22. Stones to Die For, The Economist, 18
March 2000, 86.
23. Id.
24. Id.
25. Id.
26. Robert Browning, The Parthenon in History,
in the Elgin Marbles 7-9, 1-15 (Christopher Hitchens) 1997. Browning,
supra note 10, at 4.
27. Id.
28. Browning, supra note 22, at 7-9.
29. Charles Freeman, The Greek Achievement,
1999, 1.
30. What are the Parthenon Marbles? http://www.uk.digiserve.com/mentor/marbles/index.htm.
31. See Anthi Poulos, A Parthenon Chronology
[Work in Progress, Available from the author].
32. Parthenon Marbles, supra note 30, infra.
33. Report, supra note 3.
34. Id, at 70-77.
35. 56 George III, Ch XCIX (1816) An Act
to vest the Elgin Collection of ancient Marbles and Sculpture
in the Trustees of the British Museum for the Use of the Public
(hereinafter "Act").
36. John Boardman, The Parthenon and its
Sculptures, 1985, 7.
37. Anthi Poulos, The 1954 Hague Convention
for the Protection of Cultural Property in the Event of Armed
Conflict, 28 Int'l J of Legal Inf 1 (2000).
38. Act, supra note 35.
39. Id.
40. PORTRAIT: THE TARTAN TORY'S DAY OF DESTINY;
As the Stone of Scone, ancient symbol of Scottish independence,
is formally returned to its homeland in a ceremony at Edinburgh
Castle on the weekend, The Guardian (London), 27 November 1996,
T-4.
41. Poulos, supra note 37, at 3 and infra.
42. Poulos, Id, at 14.
43. Cultural Property Division, Department
of National Heritage, CULTURAL PROPERTY [Memorandum] 8 March 1996.
44. Donald Kagan, Pericles of Athens and
the Birth of Democracy, 1991, 159.
45. Waldemar Solf, Cultural Property, Protection
in Armed Conflict, 1 Encyclopedia of Public International Law,
62 (1992).
46. 249 UNTS 240 (1954).
47. See Message from the President of the
United States Transmitting the Hague Convention and the Hague
Protocol, January 6, 1999, 106 Congress 1 Session, Treaty Doc
106-1.
48. UNESCO (last modified 14 January 1999),
http://www.unesco.org/general/clheritage/eng/legal/rat.thml.
49. Poulos, supra note 37, at 39.
50. David Rudenstine, The Legality of Elgin's
Taking. 8 Int'l J Cultural Property, 356 (1999)(book review).
51. William St Clair, Lord Elgin & the
Marbles, 1998, 86.
52. St Clair, Id. At 415 [Index] at 86.
53. Merryman, supra note 7, infra.
54. Foreign Minister Offers to Help Greece
get back Elgin Marbles, BBC Summary of World Broadcasts, 8 February
2000, Sec 2.
55. Dalia N Osman, Occupier's Title to Cultural
Property: Nineteenth Century, 37 Colum. J. Transnat'l L 969.
56. Report, supra note 3.
57. John Henry Merryman and Albert E Eisen,
1 Law, Ethics and the Visual Arts, 13 (1987).
58. Report, supra note 25.
59. Report, supra note 22, infra.
60. Id.
61. Id.
62. Act, supra note 34.
63. British Museum Act 1963 Ch 24, See also:
Halisbury's Statutes of England and Wales (1998 re-issue), Libraries
and Other Cultural and Scientific Institutions 198-200.
64. Act, supra note 35.
65. Id.
66. Act, supra note 35.
67. British Museum Act, supra 63.
68. Id.
69. Memorandum, supra note 9.
70. Id.
71. Id.
72. Jean Cooke et al, History's Timeline,
99-107 (1981).
73. Cecil Gould, Trophy of Conquest, The
Musee Napoleon and the Creation of the Louvre, 1995.
74. Dorothy Mackay Quynn, The Art Confiscations
of the Napoleonic Wars, 50 Am Hist Rev 437 (1945).
75. Merryman, supra note 57, at 16.
76. Merryman, supra note 57 at 15.
77. In this way, the perpetrator introduced
an artifice of the law into a previously lawless practice and
this would be the pattern of the future, greatest war against
culture in history—World War II. See also Merryman, supra
note 15, at 16.
78. Id.
79. Merryman, supra note 19, at 17.
80. Merryman, supra note 19, at 17.
81. Leonard D Duboff & Sally Holt Caplan,
The Deskbook of Art Law, Booklet D: Art: the Victim of War, 288
(1996).
82. Christopher Hibbert, Wellington, 199
(1997).
83. DuBoff supra note 81, at 6.
84. Merryman, supra note 57, at 18.
85. Merryman, supra note 57, at 17.
86. Report, supra note 3, infra.
87. http://www.museums.gov.uk/advice/index.html.
88. http://www.museums.gov.uk/pdf/news/SPOILATION-OF-WORKS-OF-ART.pdf.
89. UK Museums and Galleries Commission,
Restitution and Repatriation: Guidelines for Good Practice, See
http://www.museums.gov.uk/advice/index.html.
90. Id.
91. Id.
92. Id.
March 2000
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