Article by Hayley Durudogan,
Seated at the heart of Athens, Greece stands the famed Parthenon. The Ancient Greeks constructed the temple between 447 and 432 BC as an ode to Athena and a celebration of Greece’s recent military victories against the Persians. The Parthenon has survived the rise and fall of the Greek, Byzantine, and Ottoman empires, though it was severely damaged during times of war. After falling into disrepair during the 17th century, the temple became a tourist site and visitors frequently took a piece of the Parthenon with them as a historical souvenir. In the 19th century, the Earl of Elgin arrived in Greece, marking the start of a new and contentious era in the Temple’s history. Elgin supposedly paid the Ottoman Empire to take many of the Parthenon’s marbles back with him to Britain where he exhibited them on his property before eventually selling them to the British government to be housed in the British Museum. Today, the Marbles remain in the Museum’s possession, despite much legal and political controversy.
Arguments For and Against Repatriation of the Parthenon Marbles
Museums around the world, from the Louvre in Paris to the New Museum in Berlin, consistently use the ill-gotten gains of colonization to bolster their collections. During the colonial era, foreign powers seized items of great economic, artistic, historic, and cultural value from colonized nations, sometimes under dubious legal arrangements. Today, Western museums still claim ownership to many of those artifacts, including the Rosetta Stone, the Bust of Nefertiti, the Benin Bronzes, and, most notably for the purposes of this piece, the Parthenon Marbles.
While the colonial era may have come to an end, vestiges of the colonial mindset are alive and well in debates, such as that surrounding the aforementioned Marbles. In the Parthenon Marbles debate, arguments for repatriation center on the rights of Greece and Greek citizens to have access and ownership over artifacts core to their nation’s history and identity. As many scholars have highlighted, the Parthenon is no ordinary building. The temple stands tall in the nation’s capital as a proud relic of the Ancient Greek Empire and as a symbol of what it means to be Greek. To analogize, the Parthenon is to Greece as the Statue of Liberty is to the United States or the Eiffel Tower is to France: a beloved national monument that is as symbolic as it is historic.
In 2021, as in 1821, Greek citizens must travel to England if they are interested in seeing approximately fifty percent of the remaining Parthenon Marbles. Having to visit another country to access one’s own history is enough to give anyone pause, but it is especially concerning to those with an interest in international law and comity. International law is premised on respect for the sovereignty of nations. How can the United Kingdom purport to respect the sovereignty of Greece if it denies the country’s right to ownership over its own history? What is Britain saying about Greece when it refuses to return the Marbles?
The British Museum has employed a variety of arguments to justify keeping the Marbles, but the current favorite is that the Marbles are so historically significant that they belong to the entire world and that Greece does not have any unique claim to them. If, for a moment, we are to suspend our disbelief and accept this argument, why does this justify Britain keeping the Marbles? As Aaron D. Rosenberg highlighted, Greece is positioned at “the geographical center of European, African, Asian and Mideast culture…[and]…perhaps serves as a more accessible location than London to the international community to whom these artifacts [supposedly] belong.” Furthermore, many tourists visit Greece expressly to view ancient Greek artifacts. Surely, if the Marbles are part of a world history, it makes more sense for them to be housed where people actually go to explore Greek history. One would not think to go to Russia to view the United Kingdom’s cultural history, so why should we expect tourists to go to the UK to view Greece’s?
Despite the above argument, however, it appears that the United Kingdom’s real concern with returning the Marbles lies not in historical or preservationist arguments, but rather, in legal ones. The legal concept of precedent is central to Britain’s hesitation to return the Parthenon Marbles. Like many western countries, Britain is concerned that the Marbles’ return could set a precedent that depletes their museums of foreign artifacts. In light of this fear, we, like the Greeks, must turn to international law to see if the museums’ concern is justified.
Repatriation Claims in International Law
In light of the growth of international law, the Greek government has increasingly turned to the discipline as a potential mechanism for securing the return of the Parthenon Marbles. One argument the Greeks advance is that the Marbles were obtained illegally. This argument rests on two grounds: first, that the Ottoman Empire did not have authority to sell the Greek cultural artifacts to the Earl of Elgin; and second, that the Earl of Elgin exceeded the authority given to him in the agreement with the Ottoman government. Unfortunately, the original Ottoman copy of the agreement is lost and the surviving, contemporaneous Italian translation “is at best ambiguous” about what Elgin was or was not allowed to take from the Parthenon. Legal scholar J.H. Merryman suggests that the Italian translation of the contract “provides slender authority for the massive removals from the Parthenon.” Evidence from the time also suggests that the Ottomans were well aware of Elgin’s actions and did not contest them, which would further negate the illegality argument. In recent years, some scholars, such as law professor David Rudenstine, have contended that the Italian document is fraudulent and was modified in order to justify Elgin’s claim to the Marbles. If Elgin did indeed steal the Marbles, the British Museum would not have a legitimate title to them, and the Greek government could file a claim for the Marbles’ return in British court.
Another avenue for repatriation is through the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Theoretically, the Convention provides for the return of stolen cultural artifacts, but in practice, its power is limited. The convention applies only to stolen items that were imported post-ratification. The UK did not ratify until 2002 which drastically circumscribes the scope of the Convention. As the Marbles were removed in the 19th century, the convention cannot retroactively require their return. Furthermore, the Marbles’ situation is complicated by the fact that the British Museum is a non-departmental public body which is overseen by a board of trustees, not the British government. The United Nations is not empowered to hear disputes between states and private entities and thus cannot directly intervene. Despite these limitations, UNESCO recently offered to mediate the dispute resolution process between Britain and Greece. However, both the British Government and the British Museum rejected UNESCO’s offer.
In 2018, the Athenian’s Association pursued another legal avenue for redress: the European Commission on Human Rights. The Association argued that the UK’s actions violated the right to respect for private life, freedom of conscience, freedom of expression, effective remedy, and property, as these rights relate to cultural identity. Unfortunately for the Association, the Court declined to rule on the merits of the case, citing both the inadmissibility of the claims and the fact that the court could not retroactively apply EU human rights obligations to acts which occurred before the obligations existed.
In 2020, a new avenue for repatriation was again explored when, during Brexit negotiations, the EU suggested that return of foreign cultural artifacts, including the Marbles, would be a stipulation of the UK-EU trade agreement. The UK staunchly rejected this proposed stipulation claiming that the clause demonstrated “a troubling lack of seriousness about the negotiations on the EU side” and emphasizing that “the marbles were going nowhere.” It appears that the UK has won this battle for now, as repatriation of cultural artifacts is not a stipulation of the UK-EU trade agreement.
Alternate Pathways for Resolution
Although international law has yet to compel the Marbles' return, there exist many alternate legal mechanisms for securing repatriation. One potential legal solution is via treaty. Greece could make the Marbles’ return a condition of future treaties with the United Kingdom. Once ratified, the treaty would obligate Britain to return the Marbles or, facing further dispute, would at least provide a potential avenue for dispute resolution via the International Court of Justice or another legal body. Furthermore, this would counter the Museum’s concern about precedent because treaties do not set precedent, nor can a single treaty be the basis for customary international law. However, it hardly seems just to require the Greeks to bargain in order to regain their own cultural heritage.
Another potential approach was recently employed by Italy against the US. Italian museums refused to loan any items to the United States until their requested artifacts were returned, and, facing the prospect of losing access to Italian artifacts, the US acquiesced. A similar approach could prove effective for Greece. To quote Executive Director of Lawyers’ Committee for Cultural Heritage Preservation, Leila Amineddoleh:
As Greece has a rich archaeological trove, bargaining may be successful. International fervor is rising over the dig at Amphipolis, an elaborate burial site in Northern Greece that may contain the remains of a relative of Alexander the Great. Prohibiting British archaeologists to access [sic.] the site and barring any finds from going to British institutions may be one way to apply pressure for the return of some of the Parthenon Marbles.
The Greek government could also turn to soft law in their repatriation efforts. While global condemnations, working group decisions, and NGO guidelines may not be binding, they can place pressure on the UK to return the Marbles. As the majority of the British public favor repatriation, additional political pressure could be enough to compel action, given the lack of public support. A soft law standard opens the door to establishing customary international law in this area, which would benefit not only Greece, but also the many nations around the Globe whose cultural artifacts are trapped behind glass in Western museums.
The above avenues for resolution have potential, but each have their drawbacks. The treaty avenue involves Greece making a deal (i.e. giving something up) in order to get back its own cultural heritage, which seems more extortionate than just. The Italian avenue is incredibly risky given that it could exacerbate tensions and prompt backlash from the UK. The soft law avenue could prove effective in the long run, but it is possible that, despite agency guidelines and denunciations, Western states will remain resolute in their refusal to return the artifacts and contest any proposed customary international law on the subject. The aforementioned solutions give some hope for repatriation, but none would be as effective or just as adjudicating the dispute in an international court. What does the fact that Greece cannot simply take the UK to court over this issue say about international law?
The turbulent history of the Parthenon Marbles is illustrative of the possibilities and limitations inherent in international law. On the one hand, international law provides Greece with a legal avenue for redress which was not available to them 200 years ago, but at the same time, that avenue is incredibly limited and must weigh claims of sovereignty against claims for justice. In the Parthenon Marbles dispute, it is clear that justice demands the Marbles’ return. Greece has a right to its cultural history and the United Kingdom’s arguments for keeping the Marbles are entirely colonial in nature and disregard the compelling moral, historical, and political reasons for repatriation. Unfortunately, international law cannot always respond to the demands of justice.
International law is an incredibly complex discipline wherein the foundational principle of sovereignty must at times supersede concerns of fairness and justice. As much as I personally would like to see the Marbles returned to Greece, I pause at the notion of flouting sovereignty or process in order to do so, because I believe that could disproportionately hurt formerly colonized nations. In preserving sovereignty, we secure the continued rejection of colonialism by ensuring that no one nation may flout another’s right to self-governance.
In sum, the question of if or how the Marbles will be returned to Greece remains open. All I can say for now is that I hope one day international law, with respect for the guiding principle of sovereignty, will see the Parthenon Marbles returned to the people whose ancestors carved them millennia ago.
Hayley Durudogan (J.D. Candidate, Class of 2023) is a contributor to Travaux. Hayley's interests include international human rights law, reproductive justice, and gender justice. Prior to attending Berkeley Law, Hayley was working in political communications in the field of reproductive rights.