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A legal approach to the return of the Parthenon Marbles

When there was all the publicity surrounding the visit of lawyers to Athens [1] a few weeks back, a journalist from To Vima, the Greek newspaper, contacted me (along with numerous others) with some questions.

The published article in Greek [2] contained a few of the answers I gave, but I think it is worth posting the whole lot in full here.

Bear in mind, that I am not a lawyer – however, I have been present at meetings between lawyers & senior Greek officials in 2011, and party to various other high level discussions on the issue.

What I have written below should not be seen in any ways as a comprehensive discussion of the possible legal approaches, along with their benefits & risks, but merely brief answers based on the specific questions that I was asked.

Do you think it would be a “catastrophic” course of action? If yes, why? In any case, which court would, or should, make such a judgment?

At present, we must remember that all that is happening is that the Greek government is exploring the various options available to them. This is not the first time that such an approach has been considered – previous discussions between the Greek Government, and a team jointly led by Geoffrey Robertson and Norman Palmer took place in early 2011.

I think that anyone (from either side) who states that it would be a “catastrophic course of action”, is either scaremongering, or not fully aware of the range of possible approaches available and the variety of ways in which they might be applied.

One thing to be clear about, is that to achieve the goal of the return of the return of the Marbles, legal action does not necessarily have to succeed, but could merely be a catalyst for precipitating a chain of events leading to their return.

Looking at the current situation, the ideal way to resolve the case relatively amicably would be through direct negotiations. Any attempts at doing this though have always been rebuffed by the British Museum who insists on laying down preconditions that present too high an entry barrier for Greece to ever agree to them – and rightly so – it would be crazy for Greece massively weaken their position, before negotiations even started.

The next step on from this would be to get a third party involved, to independently oversee the case. Such a solution (mediation via UNESCO) has been presented to the British Museum just over a year ago, but they are reluctant to enter into it and have yet to respond, as there is no incentive for them to do anything. If however there was a credible threat of something worse (perceived as more likely to be detrimental to their institution, more likely to cost large amounts of money, generate bad publicity etc) then mediation would suddenly become a much more palatable alternative and might be reconsidered.

Litigation should be seen as the solution only when other more amicable solutions have first been exhausted – although beginning legal action does not prevent eventual resolution through another method.

The obvious precedent for this approach (although with a few bumps along the way – such as the prosecution of Marion True), is that of the Italian government versus various large museums in the USA. For many years, Italy had been making requests for items that they alleged had been illicitly looted, such as the Euponios Krater in the Metropolitan Museum, or the statue of Aphrodite in the Getty. It was only however, when the threat of legal action loomed on the horizon, that the museums in question accepted that the issue was not going to go away – that they could no longer continue to bury their heads in the sand. Both these cases have since been resolved, but in neither instance did the legal action get anywhere close to reaching a final verdict.

The issue of which court would be used is not a simple one. If you were to ask five different lawyers, all might say that they could build a strong legal case in support of the reunification of the Marbles, but each would have an entirely different approach to it.

There are courts that represent an easy option to win, but that would not necessarily be an easy option to enforce (see Agudas Chasidei Chabad v. Russian Federation, et al. for an example of this).

For the ruling to be taken remotely seriously by the British, then the British courts, the ECJ or the ECHR are the only options that are likely to cut the mustard. One must remember though that the enforcement of sanctions could take many forms. At present, Greece is very cooperative with the British Museum (and other UK institutions), in terms of lending articles for temporary exhibitions, granting excavation permits to archaeologists etc. If some of this cooperation was withdrawn, then the British Museum would start to find itself in a less comfortable position. Egypt & Libya have both used this approach successfully in the past, to secure the return of Pharonic antiquities in the Louvre & the loan of the Cyrus Cylinder respectively.

At the moment, there is a deadlock, where the British Museum does not feel any real pressure to tackle the issue seriously with the aim of its eventual resolution and something is needed to break this deadlock.

What will be the cost in time and money of such a move? And, more important, how binding would be the verdict? Would a defeat of the Greek side necessarily spell the end of the struggle for the return of the sculptures?

With any legal action, there would be a cost, although how much this would be would depend on how far the case progressed before it was resolved. Timescales are so dependent on the approach taken that it is impossible to comment on it at this stage.

See above regarding how binding the verdict would be.

To understand how one can manage the risks inherent in a legalistic approach to the case, one has to understand that the case can be resolved, without being won (or lost). A credible legal case is far more likely to act as a catalyst for other serious negotiations with an aim to resolving the issue. Civil cases are often settled on the courtroom steps, rather than in the courtroom itself, if the two parties are both minded to reach some sort of solution.

Greece has in the past (notably when Evangelos Venizelos was Culture Minister in 2003) offered what many would see as a win-win solution for the British – that the Parthenon Marbles could be returned, in exchange for various short term loans of previously un-exhibited Greek artefacts. Once people have visited a museum a few times, they are unlikely to return, unless there is something new to see there. The British Museum ought to have jumped at the chance of a series of ready-made temporary exhibitions, but did not. Perhaps though, if the landscape that they inhabited changed, for instance through a threat of litigation, then this option would suddenly be seen in a completely different light and re-evaluated on its merits as something that the museum might agree to.

And what should be, in your opinion, the most desirable, realistic and fair solution?

From the perspective of many Greeks, any form of compromise is a step to far. On the other hand, the British Museum is desperate to avoid losing face.

I think that there are solutions, where both parties could end up relatively satisfied, but perhaps this would have to involve lengthy transitional arrangements, whereby the sculptures were relocated to Athens, but their ownership remained with the British Museum for instance. Another option is for one or two sculptures to return initially with a reciprocal agreement, to give a chance for both sides to show that they are willing to honour their own promises.

To reverse the British position on the Marbles after over 200 years would involve a massive shift in their policy – so possibly approaching it as a series of smaller steps forward might be the sort of solution that is most likely to keep both sides happy, while allowing them to eventually resolve the situation.

For Greece, taking the decision to request Mediation through UNESCO was a massive step forward, but they have to keep applying the pressure – and not lose heart because their initial approach has been stonewalled. Once Britain (and by the I mean bother the British Government and the British Museum) sees the Parthenon Sculptures as an issue that needs to be resolved, then they will resolve it.