June 3, 2005

What does the Feldmann case verdict mean for the Elgin Marbles

Posted at 8:15 am in British Museum, Elgin Marbles, Similar cases

A lot of the articles appearing in the press in the last week about the Feldmann case & the subsequent verdict have made a connection between this case & that of the Elgin Marbles. Both cases after all involve artefacts in the British Museum that people are campaigning to be returned. In reality though, how relevant is the Feldmann case & the subsequent verdict?

Points arising from the Feldmann case

On Saturday, the story was in the following papers:
Guardian, BBC News, The Scotsman, Daily Telegraph, Financial Times
Syndicated versions of the article from Bloomberg, AFP, AP & Reuters appeared in many US, Canadian & Australian Papers.
Copies of all these versions appear in the previous posts about the case during the last 2 weeks.

In total the story has been on over 25 different news sources in one form or another.

From reading through the articles there are a number of relevant points that I have noticed & summarised below. Some of the background details come from earlier articles from 2002 onwards. Anyway, there are some quite interesting points that we can get from this case & the media’s reaction to it.

Details of the case:
The case is HC04CO3885 : Her Majesty’s Attorney General v The Trustees of the British Museum.

The case was the first claim against a British collection demanding the return of artworks looted by the Nazis (there was a previous case against the Tate, but the owner’s descendents were seeking financial compensation rather than restitution.)

The case against the British Museum dates to 2002, when they requested the return of 4 items owned by the museum that they believed were from the Feldmann collection.

The Feldmann family in Israel are also pursuing a case against the Moravian Gallery in Brno (Czech Republic) for the return of about 135 works. The family have tried to claim back these paintings in 1960 & 1995 unsuccessfully due to legal / political reasons, but a new law passed in 2000 allows for the restitution of these items. Negotiations for the return of these works have been successful, with the Moravian Gallery wanting to buy back some of the most important items that they are loosing.

The British Museum agrees that the 4 works are looted & wants to return them, however they are prevented from doing so by the British Museum Acts limitations on deaccessioning artefacts.

The British Museum says that they would very much like to return the works, but can not do so without a change in the British Museum Act. They ask the Attorney General who asks the courts to confirm this interpretation – which they did last Friday.

Points arising from this:

  1. It is now (due to the media coverage) well known that the British Museum has items in their collection that are undisputedly stolen / looted.

    They bought three of the works at an auction, the other one was received in a bequest by a former director of the British Museum (nowhere have I seen any mention of where he acquired it from).

    From a revised version of the story on Bloomberg:

    The British Museum said in a statement after the ruling that the drawings presented “a unique moral claim,” which it had wished to meet.

    “It is now beyond doubt that, when there is a claim for an object in the British Museum collection which can be proved to have been stolen from a Jewish family by the Nazis, the object cannot be returned without the authority of an Act of Parliament,” it said in the statement.

    The institute said it will now refer the claim to the U.K. Department for Culture, Media & Sport’s Spoliation Advisory Panel and seek its advice as to the most appropriate action to take in response.

    Justice Morritt today said that only new legislation or a “bona fide compromise” on the descendants’ claim to the drawings would allow the trustees to legally transfer the works.
    The Commission for Looted Art in Europe, which has represented the Feldmann family on its case, said in a statement that it “regretted” the ruling and would continue to push for new laws permitting the drawings to be returned.

    The British Museum said in its statement that its trustees “do not accept” that there is a moral claim to any objects in its collection other than the Feldmann drawings.

    The British Museum claims that these 4 works are the only looted items in their collection & the only ones on which there is any sort of moral claim (I’m finding this bit very hard to believe – that they can end up with paintings from the same collection from two different sources – that were looted at a time that a large amount of looting was going on – but claim that these are the only looted items in their collection.) Interestingly, in previous audits of their collection to see what items might have been looted they never had any issues with the provenance of the Feldmann collection paintings.

  2. Following on from this awareness that the British Museum has stolen artefacts in its collection, the public is now also aware of the nature of the British Museum Act. As a result of this case I would imagine that the majority of people who read the articles would now think that the British Museum Act ought to be altered to allow the restitution of items such as this. The only other news story that I have seen that paid attention to a similar act of parliament was the return of the Benevento Missal from the British Library earlier this year.

    This case has had a lot more media attention however in its final stages. The Commission for Looted Art in Europe http://www.lootedartcommission.com/ does list a number of earlier articles, as does the Museum Security Network.

    The Government said that they were committed to a change in the law 5 years ago, but have still not got around to implementing it. This increased publicity is likely to make any change in the law happen sooner than it otherwise would have.

    From The Guardian:

    Anne Webber, of the looted art commission, said a parliamentary committee had warned the government five years ago that the law needed to be changed. The committee chairman, Gerald Kaufman, said: “Where a claim has been upheld and restitution seen as appropriate it is essential that the legislative barrier is removed. It would be absurd if restitution was not possible in those circumstances due to the dilatoriness of ministers.”

    A British Museum spokeswoman expressed disappointment that the pictures could not be returned in this “exceptional” case without a law change. A Department for Culture, Media and Sport official said the judge’s ruling had clarified the issue, adding: “We will now look seriously at the case for legislative action.”

    From The Scotsman:

    [DCMS Said] “The case confirms that legislation is necessary. We will now look urgently at this issue.”

    Due to comments already made by DCMS in the past, it is likely that any change in the law would only apply to items looted by the Nazis. This suggestion was also hinted at, when the Benevento Missal was returned. I have always found this argument very weak in many ways though. While I can happily cope with a period of limitation on such cases, I can not get my head around why other items looted in wartime more recently should not be covered, nor for that matter why items looted during WWII but not by the Nazis (hello Russia) should also not be covered. (although I would speculate that some of this is down to current fears about being labelled as anti-Semitic & the existence of certain influential lobby groups (I seems odd to me that despite the name, the Council for Looted Art in Europe, only deals with artworks looted during a very specific period from a specific section of the population – I don’t in any way have a problem with an organisation dealing with a specific group of cases in this way, but the organisation’s name suggests a greater inclusiveness that is not present)

    From Reuters:

    Lawyers for the British Museum had said the case of art looted by the Nazis is exceptional and would not create a precedent for other art work claims.
    “Once the principle is established, then it could apply to any objects whatever their provenance,” Will Henderson, a lawyer for Lord Goldsmith, told the court. “Whether they were looted during the course of the Holocaust or whether they were acquired in unseemly circumstances at any other time. What if the moral claim were very different – if it were a cultural claim rather than a proprietary claim? . . . The door would be open.”
    In his ruling, Morritt said no moral obligation can justify the British Museum trustees departing from the law protecting objects forming part of the collections.
    “In my judgment, only legislation or a bona fide compromise of a claim of the heirs of Dr. Feldmann to be entitled to the four drawings could entitle the trustees to transfer any of them to those heirs,” Morritt said in his 13-page ruling.

    This comment at the end about a bona fide compromise is an interesting one that is not really explained. Obviously it could include financial compensation, as in the Tate case. However I am not sure if this would also cover a long term or permanent loan for instance, or a combination f the two. As far as I understand it the Attorney General is authorised to offer financial compensation in such cases.

  3. The ruling clarifies that the British Museum Act can’t be overruled by any reasons not covered in the Act, but then did anyone really think that it could anyway?
  4. Despite the way the case was put forward by most papers, the case wasn’t that the paintings could not be returned. It was that to return the paintings would require a change in the law.

    Essentially the ruling was that the law in the form of the British Museum Act could not be overruled by a moral obligation.

    As far as I am aware, no one is disputing that the paintings should be returned – both the British Museum & the government feel that there is a strong / valid case for their restitution.

    From Daily Telegraph:

    Sir Andrew said in his judgment that neither the Crown nor the Attorney General had any power to dispense with “due observance” of Acts of Parliament.

  5. Now this is the contentious point, particularly if you read any of the stories in the press.

    The case had very little to do with that of the Elgin Marbles.

    There is more than one reason for this statement.

    1. If we run back through the case, we see that both the British Museum & the Government feel that the paintings should be returned – this is definitely not the case with the Elgin Marbles. Surely had this case gone the other way, the fact would remain that the British Museum would only return items if they wanted to.

      Unless I am missing something, they would only return items that they felt that they had a moral duty to return & they would be the only ones who decided that they felt they had a moral duty. The case was not about whether the British Museum wanted to return the paintings, as this was never an issue. Reuters reported this in a way that leads you to believe that this is not the case, but based on my understanding of the case the Reuters article is incorrect on this point.

      From Reuters:

      The government’s top legal advisor, Attorney General Lord Peter Goldsmith, had asked the High Court to establish whether the British Museum — home to treasures like the Marbles and the Rosetta Stone — had a moral duty to return property obtained improperly.

      Surely the case was about whether they could return property where they felt that they had a moral duty, not that they had a moral duty to return certain items.

    2. This case was all about the transferral of ownership. For some time now, the Greek request for the return of the Elgin Marbles is not about ownership, but is instead asking for a long term loan of the sculptures. The British Museum Act should not an issue with long term loans.

      From the British Museum Act (1963)

      4 Lending of objects
      The Trustees of the British museum may lend for public exhibition (whether in the United Kingdom or elsewhere) any object comprised in the collections of the Museum:
      Provided that in deciding whether or not to lend any such object, and in determining the time for which, and the conditions subject to which, any such objects is to be lent, the Trustees shall have regard to the interests of students and other persons visiting the Museum, to the physical condition and degree of rarity of the object in question, and to any risks to which it is likely to be exposed.

      The precedent for the return of an item as a long term loan to avoid anti-deaccessioning terms is already there in the return of the Benevento Missal – it was returned to Italy from the British Library, but as a long term loan with caveat that the ownership could not be transferred until there was a change in the law to allow this.

    3. So what connection does the Feldmann case have with the Elgin Marbles? All the papers since last Tuesday have implied that there is a connection. The fact is however that if you look through the previous articles on the case, there was never any connection made between this case & that of the Elgin Marbles until the statement by the Attorney General’s office on Tuesday.

      This created a lot more publicity for this case in some respects (& became a part of the article title in many cases) but at the same time this case gave additional publicity to the Elgin Marbles.

      This aspect has in many ways misled the public. For some time now, campaigns for the return of the Elgin Marbles have been trying wherever possible to correct certain misconceptions by the public about the marbles – one of the most important of which is the precise nature of the Greek request. Not one of the articles that I saw in the last week acknowledged this fact, instead implying that the Greeks wanted ownership of the sculptures.

      So, although we got publicity about the Elgin Marbles & about the peculiarities of the British Museum Act, at the end of this it could well be the case that the public is less clear about the specifics of the Greek request for their restitution than they were at the start of this case.

      Looking at this from a cynical point of view, I do wonder where the Elgin Marbles aspect was suddenly picked up from & whether it came from the British Museum or from the Attorney General’s office. This focus on the case’s relevance to the marbles managed in many ways to divert reporting on other aspects of the case. It is interesting looking at articles about the case on the internet (not from traditional news sources) there is a huge anger in many Jewish groups at what they see as the British Government expressing support for the Nazis. With headlines like “British Court says ‘Hitler Wins – Screw the Jews’” which is the kind of publicity that I can imagine that the government would have wanted to avoid. As it was however, none of the mainstream press took this line – even the Jerusalem Post just carried the AP syndicated article.

      On the other hand, the press when they report the outcome of legal cases often concentrate on broad ‘possible consequences’ rather than the exactitude of the legal situation (it could well make the story more interesting to the general public as well). They rely on relating stories to high profile issues that will resonate with the public & like to put stories as absolutes rather than identifying the subtle differences between cases.

      I am not saying that this is necessarily the case, nor that it was deliberate, merely that the end result of this case seems to have been to introduce a lot on confusion in peoples minds & to loose sight of what the case was really about.

Thanks to Nicky Artemi, Geoff White, Anthony Snodgrass & Chris Price for comments & suggestions.

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  1. Daniel said,

    09.30.09 at 7:12 am

    The fact that no moral argument can bring about a change in the law means the law will never change. what other argument is there. If the law wont even allow nazi looted paintings to be returned which the museum agrees, then the elgin marbles which the government and museum claim is lawfully owned means there is not a chance in hell of these marbles going to back to greece. you are wasting your time pursuing this legally.

  2. Matthew said,

    09.30.09 at 12:33 pm

    However, the moral argument in the case of Nazi Loot was deemed to be so strong, that the government is in the process of passing a new law that will over-ride laws such as the British Museum Act & allow its return.

    If you read the whole post though, you will see it is clear that I feel it had very little to do with the Parthenon Marbles in the first place anyway.

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