Ownership of Cultural Property: A Case Study of The Elgin Marbles

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The term ‘culture’ in ‘cultural property’ is representative of the sentiment and prestige attached to the property. It includes properties which hold historical significance for a group of people and is representative of their culture. There are competing claims on ownership of such properties. One of the most famous of such disputes is that of the ‘Elgin marbles’, which originate from ‘Athenian Acropolis’ but have been owned by the British Museum since 1816. This group of marble structures are known as the “Parthenon Marbles” by the Greek official national rhetoric and the “Elgin Marbles” by the British Museum. While the marbles primarily signify the glory of ancient Greece, they have also become part of the debate on repatriation. These ensembles belonged to the fifth-century ‘Parthenon Temple’ which depict the scenes from the Greek mythology.

The Greece government has been making persuasive claims to the English museum for returning the marbles for over 200 years. Both Greece and Britain today recognize them as part of their culture. Today, almost half of the Elgin sculptures are being displayed in the British Museum while the other half is on show at the New Acropolis Museum of Athens.

History of the Acquisition

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These group of marble sculptures, statues, inscriptions, and architectural members were acquired by the British Museum in 1816. They were removed from the ‘Athenian Acropolis’, which was at that time under Ottoman occupation, between 1801 and 1802, by the Seventh Earl of Elgin, Thomas Bruce (Hereinafter referred to as “Elgin”). Elgin got a ‘Firman’ to draw and replicate cultural objects of the Parthenon museum but he instead chose to remove them from the museum. Elgin was posted in Constantinople, he left for London in January 1803. The sculptures underwent an adventurous journey by sea during which, one of the ship sank. The ship was subsequently retrieved by Greek fisherman and the remaining shipments of the Parthenon freight remained in the custom house of London for two years. Elgin got divorced on returning to London and found himself financially troubled, destitute with no intent or means of returning to Broomhall. He had no other option but to sell the marbles, he placed the marbles in an unclean damp shed at the grounds of his Park Lane house, where they remained decaying for years while he tried to find a buyer. Twelve years later in 1816, he sold the Marbles to the British government at less than their original cost, the same were acquired through an Act of Parliament.

A lot of debate stirred up, as to whether Elgin had abused his position as an ambassador to obtain the Marbles and if their export was an illegal activity carried by Elgin merely for financial profits. The purchase was opposed by both the government and the public. The Parliament purchased the entire collection by passing a legislation by a vote of 82 to 30, 30 members felt that Elgin improperly took the Marbles from Athens. The Marbles were transferred to the British Museum after their purchase, where they reside even today in a special gallery.

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The then Greek Minister of Culture, Mrs. Mercouri, made an appeal asking the British to do the right thing by returning the Parthenon marbles to Athens. Greece wanted the Marbles to be reunited in a museum to be built at the foot of the Acropolis Hill, where the remains of the Parthenon temple stand, as a single collection. The British continually resisted the claims and refused the official requests by the Greek government for the Marbles, they argue that they belong to London instead.

Arguments for repatriation

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From the perspective of Greece, there are four points supporting their claim. First is the argument of origin, which is that the monument to which the sculptures belong is in Athens and therefore forms a part of their culture. The marbles hold cultural significance for the country. Second, the Marbles will be exhibited in Athens in the temple and will give a complete image of the monument as it was meant to look. Third, they are a symbol of national heritage which must be displayed within the country and not in another country’s museum. And fourth, the marbles were acquired illegally as there was never any consent given and, even if it proved that it was, the argument still holds since the marbles were taken during a period when the country was under foreign occupation. According to this argument since the Greek people had no say in such consent, it should not be valid.

Arguments against repatriation

The British have consistently denied the return of the Marbles and provided four arguments justifying such retention. According to their records, the Marbles were removed legitimately ‘in accordance to‘ a legal document—the Sultan’s firman. Even if it was illegal, then Greece had lost the right to enforce its ownership due to passage of a long time. Second, returning the Marbles to Greece would establish a precedent for the “universal removal of major acquisitions of the world’s museums”, which will then limit the role of the museum and would increase the demand for repatriation of other artefacts. The key reason for the museum’s refusal is not to create a precedent for further demands of repatriation. In this case the issue is not between two countries but between a country (cultural group) and a legal person (museum). In cases where right to cultural property is asserted against a person and not a country, then it becomes more of a private claim. The dispute is between countries and dynamics of the exchange and points of negotiation are usually different. Third, it is asserted by the British that the removal was essential to preserve the marbles and that the removal has proved beneficial in preservation. Museums are usually equipped to maintain conditions that best preserve cultural property better than it would be in the temple. This is a typical argument used by museums against return of disputed properties. Fourth, the Marbles have become an integral part of the British cultural heritage since the museum occupies a big part of culture.

Analysis

The legality of the acquisition is not pertinent to the discussion here, though it is beneficial to note that most commentators assert that acquisition was illegal and Elgin did go beyond the authority given to him in the firman. The debate ends up being whether there is a need to better preserve cultural property or if this decision belongs to the culture that such property belongs to. The arguments presented by both sides to the present case are merely fact based, to understand the ownership of cultural property, theoretical understanding of policy of such ownership is essential. While keeping the marbles in the museum would preserve them, this wouldn’t be sufficient reason if it is understood that cultural property belongs to the country of origin.

 Theories on Ownership of Cultural Property

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Nature of Cultural Property: Unlike other forms like land or other moveable property to which traditional legal rights are easily assigned, cultural property usually embodies the collective identity of a group of people. The transactions in cultural property are worth a lot of money and are entered into by individuals to establish their rightful ownership over the property. When the object at stake does not only have architectural, archaeological, anthropological value but also embodies the accomplishments, values, and beliefs of a people, ownership can be a complicated notion, with more at stake than the simple legal right to possess such objects.

Countries are protective of their cultural patrimony because of a sense of national pride and the need to preserve unto themselves the works created by and representative of their own people. This is why it is necessary in the present discussion to understand the nature of cultural property. Unless the intangible component of the property is understood, the merits of assigning ownership cannot be understood either.

Cultural Nationalism: Cultural Nationalists endow cultural objects to be vested with national interests, values and pride, all crucial for the people of the nation to learn and look back upon. therefore, cultural property must always be reinstated within the borders of the nation it was created in. This philosophy gained greater recognition when the 1970 UNESCO Convention was ratified. The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects also uses the same definition for “cultural objects” (rather than cultural property).

Cultural Internationalism support the idea that preservation and enjoyment of all cultural property is of greater importance and whosoever is better enabled to do so, should retain possession of the cultural property, irrespective of the country of origin. As embodied in the 1954 Hague Convention, cultural property is world heritage and should be preserved and observed so. This means that treasures such as Nefertiti’s Bust in the Neues Museum in Berlin and the Elgin Marbles in the British Museum should remain in those respective museums since these museums, with their vastly abundant resources, can better preserve the artefacts and make them available for all the world to see.

 

Legal Protections

Repatriation has recently gained attention which has led to a shift from internationalist attitude to recognition of cultural rights. The recent treaties on cultural property are in favour of repatriation and are oriented in favour of the source country. The conventions have a limitation period and do not apply retroactively so they don’t apply to the case of Elgin marbles. However, it is essential to take a note of these treaties to understand the world recognition of the legitimacy of repatriation of cultural property.

Following are some of these conventions-

1.The Hague Convention of 1954 – Convention on the Protection of Cultural Property in the Event of Armed Conflict: As the first comprehensive international agreement on the protection of cultural property, it does not allow cultural property to be appropriated by invaders when territories are under occupation, which means that they cannot remove these artefacts from the land of origin and if done, definitely assures the return of these objects at the end of the occupation.

2.1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property:  It monitors the transfer of private and state cultural properties across borders by necessitating appropriate licenses and export control before cultural materials can be imported from source countries.

3.1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects: In order to facilitate reparation to Holocaust victims, this convention enables private individuals to claim stolen cultural property, even if it has been been taken to a foreign country. In order to do that, the objects must be located and claims presented before a court or a competent authority. Arbitration may lead to return of the object or of  compensatory amounts, subject to a period of limitation within which it must be restituted.

The nationalistic theory of ownership has gained popularity recently and the significance of cultural rights has become prominent. Many treaties have been enacted to protect the origin country’s right to their cultural property in case of Elgin Marble, however redundant most of the time. A country deserves the right to its own cultural heritage and genuine claims involving stolen cultural property must be entertained, also they should try reaching a common ground through either litigation or alternative resolution mechanism.

 

Written by Aishwarya Satija ( JGLS’14)

Edited by Poulomi Bhadra and Prakriti Kapoor

 

 

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