4th January 2022
*
The Parthenon marbles situated in the British Museum are back in the news.
From a legal perspective the following five points can be made – and have been made previously on this blog – here and here.
*
First, there is no sound basis for the often asserted proposition that the marbles were lawfully acquired by Elgin before being given to the museum.
Any close look at the circumstances of the acquisition raises a series of issues.
*
Second, if they were not lawfully acquired by Elgin then the marbles were not his to give to anyone – “title” in the property could not have passed at the time to the British Museum.
*
Third, if the marbles were not lawfully acquired by the British Museum then the museum’s usual defence – that it is a serious and conscientious custodian of the world’s treasures for the public benefit – while admirable, is irrelevant to whether the marbles were lawfully acquired.
The later legal protections for possessions in its collection for the public benefit do not make good any deficiency in how the marbles were acquired.
Of course, it is far too late for this to be a practical legal issue – statutes of limitation and so on have long extinguished any legal claim against the museum for recovery of the marbles.
The museum will undoubtedly have now acquired title just by sheer passage of time: a sort of posh version of squatters’ rights.
Yet, just because there can now be no legal claim against the museum does not mean the marbles were lawfully acquired in the first place.
*
But.
Where the British Museum have a stronger case is on the fourth and fifth points.
The fourth point is that the current legislation does make it difficult-to-impossible for the museum to dispose (to use the legal word) of the marbles as it wishes, either by returning them to Greece or otherwise.
An elaborate legal basis could, perhaps be provided, but – on balance – one suspects an English court would rule such a disposal as unlawful.
This means this is not a matter solely for the trustees of the museum (as I explain here).
For the marbles to be returned properly to Greece would require a change in primary legislation, which in turn means it has to have government support (or at least no government opposition).
*
And this brings us to the fifth point: the future of the marbles is in the realm of politics, and not law.
It is a policy decision, where any legal changes would flow from a decision by ministers.
*
The proposed work-arounds, of the British Museum loaning the marbles back to Greece, would fit within the current legislation.
Just as many things in the collection can be lent to other museums in other countries.
One can understand why the Greek government will not find such offers acceptable, despite the current hopeful leaks to the British political press.
Perhaps the Greeks will insist on there being a transfer of property – which would make it a legal issue.
But that is a legal issue which can only be practically resolved by politicians.
And as such it is a perfect example of a subject where law and policy mix and combine.
So perfect an example, in fact, that it should be on display in, well, a museum.
***
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
Statute of Limitations in case of theft. Could the acquisition of the marbles be described as theft, and would this remove the time limitation? Obviously complicated by the transfer to the British Museum.
After two centuries, there may be some evidential difficulties in establishing that there was a theft, and that someone else has better title to the marbles than the trustees of the British Museum.
If the Government of Greece thought it had a strong enough legal case, it could bring a claim tomorrow. The absence of such a claim explains why we end up with pleas in the court of public opinion, employing moral suasion and politics.
If there is the political will, this sort of legal difficulty can be cut through legislatively, as it was for Nazi plunder by the Holocaust (Return of Cultural Objects) Act 2009 – https://www.legislation.gov.uk/ukpga/2009/16 – under which the relevant UK museum bodies are empowered to transfer back items in their collections if the Secretary of State approves a recommendation to that effect from the Spolation Advisory Panel. https://www.gov.uk/government/groups/spoliation-advisory-
Sorry, I seem to have cut off that second link. Hope this one works: https://www.gov.uk/government/groups/spoliation-advisory-panel
In a far distant future I suppose this gives the Greeks leverage should we ever apply to rejoin the EU.
Similarly, the Spanish and Gibraltar … and so on.
Well, Thatcher was happy to sell the family silver.
This might be of interest – my grandfather W L C Knight, an “official on the Greek desk at the Foreign Office” (Consul-General, Tunis, 1937–40; Basra, 1942–46; Athens, 1946; Salonica, 1946–49;) was tasked to provide an expert opinion in 1941:
“The task of collating the expert opinion and drafting a memorandum for Ministers was undertaken by the official on the Greek desk at the Foreign Office, Mr W.L.C. Knight. Knight took the view that a decision on the general question of return should be reached in the fairly near future, invoking not only Britain’s exceptional relations with Greece, but also the interest now being taken in the question by the British public, as shown by the recent correspondence in The Times. Of the letters published the great majority were in favour of the marbles being restored to Greece. But since some time might be needed for this decision, he suggested a non-committal reply to Miss Cazalet’s question, along the lines followed word for word in Foreign Secretary Anthony Eden’s final recommendation that the present moment is inopportune for a final decision on a subject which raises several important issues, and has given rise to so much controversy in the past; but that His Majesty’s Government will not fail to give the matter their careful and sympathetic consideration.
Knight also suggested that, if return were eventually decided on, the best time for it would be after the war when transport would again be safe: ‘It would thus set the seal on Anglo-Greek friendship and collaboration in the way that would most appeal short of the cession of Cyprus – to Greek patriotic sentiment’. And he concluded:
‘For the gift to be complete and completely acceptable it should comprise, in addition to the Parthenon friezes, the Caryatid and the column from the Erechtheum which all together constitute the Elgin Marbles.’
Once ready, the Knight Memorandum was passed up the line accompanied by a note from his immediate superior, Mr (later Sir) James Bowker (Deputy Head of the South-East European Department), in which he said:
‘Everything points to a decision in principle to return the Elgin marbles to Greece on certain conditions, as enumerated in Mr Knight’s memorandum. In order that the memorandum should be quite complete I think it should include recommendations, and I have appended a draft final paragraph accordingly.’ ”
[This is an extract from “ ‘Position of the Foreign Office in 1941’ Published by the British Committee for the Restitution of the Parthenon Marbles © Copyright 2001. All Rights Reserved”].
I’m impressed that matters like this were seen as important enough to be considered at a high level in government while we were just two years into World War II and the outcome still uncertain!
This is really very interesting! Thanks for posting!
Interesting that a few letters to The Times should be taken as indicating the interest of the wider public in the issue.
What if the British Museum were to loan the marbles to the Greek government and then the Greek government just decided to keep them? Would sovereign immunity make the matter non-justiciable or would the courts (in England or Greece) be able to force their return to England?
May I forward this Elgin post to a Greek relative?
Clearly, as you’ve outlined, it has to be a political decision. One thing overlooked by many an interested commentator, though, is the moral case (note: not a criticism of this blog as it is concerned with matters legal). As with the recent return of looted Benin bronzes and human remains, there is a clear moral imperative to do the same with the Elgin Marbles. The passage of time is then irrelevant, and if the British Museum is constrained by regulations and/or legislation, then Parliament should step in and create the necessary conditions in which the Marbles can be rightfully returned to Greece. The return of other countries’ treasures and other material (including human) is a key part of the British public finally recognising and acknowledging the Empire’s and its players’ appalling record that is so frequently and blithely dismissed as unimportant, if not trivial, compared to what our ancestors apparently “gave” to the rest of the world.
> For the marbles to be returned properly to Greece would require a change in primary legislation…
Was that change not already made by section 16 of the Charities Act 2022? It provides that – notwithstanding any statutory charity’s establishing legislation – the Charity Commission, Attorney General or High Court may permit a charity to dispose of (“mak[e] any application of”) its property if the trustees “in all the circumstances could reasonably be regarded as being under a moral obligation” so to do https://www.legislation.gov.uk/ukpga/2022/6/section/16 albeit section 16 is not yet in force, so awaits not primary legislation but merely the Secretary of State’s signature on a commencement instrument.
This is true… and needs to be highlighted as part of the discussion on the topic. The Charities Act 2022 can effectively provide a legislative route for trustees of museums like the British Museum to return property if there is a moral obligation to do so, with approval from the Charity Commission, Attorney General or the Courts, as Rich Greenhill says here. The matter still remains one for the trustees to decide – and they could not be forced – but the usual arguments used about statutory bars need to be reconsidered.
See this blog post (and Guardian coverage in Sept 2022) and full length journal article here: https://ial.uk.com/museums-restitution-and-the-new-charities-act/
I can’t help but quip that if the British Museum were to lend the marbles to a museum in Greece, no doubt it would be the Greeks wary of Brits bearing gifts.
If Elgin never legally acquired the marbles and title therefore never passed to the British Museum, who held title over the marbles from a legal perspective until the expiry of the statute of limitations? Was it the Ottoman Empire? If so, does Turkey have as strong (or weak) a legal claim to the return of the marbles as Greece?
At the time, local (i.e. Turkish) law would have come into play to identify the person with a better title than the Lord Elgin/the British Museum; that might well have been the Turkish state. But the rights of the Turkish state in relation to public property in Greece would have passed, on independence, to the Greek state under ordinary principles of state succession, in much the way that what was Crown property in what became the territory of the Irish Free State passed to the IFS in 1922.
The Elgin marbles were part of a public (and, lets assume, state-owned) building in Athens; that, rather than the fact that they were orginally created in Greece) is what gives the state a claim to own them. And, because the building is in Greece, that claim will now have passed to the Greek state.
Politics and artefacts ?
When will you Brits be getting to see the Bayeux tapestry ?
Will it be before or after Northern Ireland has been linked to the mainland ?