I posted last week about the rejection of the case for the return of the Parthenon Marbles [1] brought in the European Court of Human Rights by the Athenians’ Association. As I pointed out then, the inadmissibility was down to technical issues with the claim – not any sort of judgement on Greece’s right to ownership of the sculptures.
Since then, George Vardas [2] from Australians for the Reunification of the Parthenon Sculptures has nwritten a much more detailed summary of the legal issues involved behind the inadmissibility.
[3]The European Court of Human Rights Building in Strasbourg
From:
George Vardas [2] (by Email)
The Parthenon Sculptures and the European Court of Human Rights
George VardasIn a recent interview regarding the Parthenon Sculptures, the Director of the Acropolis Museum, Professor Dimitris Pandermalis, stated that “their return is a matter of cultural morality” and stressed that “there are human rights, but great monuments also have their own rights”. He was referring to the fundamental rights of integrity: “you cannot mutilate a great monument”.
So what do we make of the recent dismissal by the European Court of Human Rights of an application brought by an Athenian association alleging that the continued retention of the Elgin collection in the British Museum infringes certain provisions of the European Convention of Human Rights?
To understand the decision of the Court, let me first give a brief overview of the claims made by the Athenians’ Association (Σύλλογος των Αθηναίων) [4] in the broader context of the rights afforded by the Convention.In essence, the applicant sought to invoke the jurisdiction of the Court as an association representing the citizens of Athens whose rights in relation to the Parthenon sculptures were claimed to have been violated from the time that Lord Elgin’s men removed them from the Acropolis and shipped them to England.
The Association alleged that its members’ rights had been infringed in a number of ways but essentially its core complaint was the infringement of the right of Athenians to enjoy their historic possessions, protected under Article I of the First Protocol of the European Convention. The retention of the Elgin collection in London constituted, it was claimed, an interference with their proprietary right to access to the whole of the monument. The Association also claimed a breach of Article 10 – the right to freedom of expression and to take part in the exchange of cultural, political and social information – which arguably includes the right to seek historical truth in terms of access to original sources for legitimate historical research. Finally, given the British decision to refuse to participate in mediation offered by UNESCO, the Association argued that that refusal amounted to a breach of Article 13 providing for the right to an effective (but not necessarily judicial) remedy in the case of arguable complaints under the Convention.
At the outset, it is important to note that this application was filed by a private association, and not by the Greek State. Most cases that come before the European Court of Human Rights are brought by individuals, usually against their own state, and they have to satisfy often stringent admissibility requirements before the case can actually proceed to be heard on its merits. The Court can declare inadmissible any individual application if it considers that the application is incompatible with the provisions of the Convention or its Protocols [5], in terms of inadmissibility ratione temporis [6] and inadmissibility ratione materiae [7].
In terms of ratione temporis, the Convention is not binding on the State in relation to any act or fact which took place before the Convention came into force (1953) unless there is a continuing violation which originated before that date and still persists. Here, Court decided that it lacked temporal jurisdiction because the acts complained of occurred before the ratification of the Convention by the UK although the Court did appear to countenance the possibility of the argument that there is a continuing violation from when Elgin took the sculptures to the present day. Relevantly, the Court has extended jurisdiction in several cases concerning the right of property such as the continuing unlawful occupation by the navy of land belonging to the applicants, without compensation (Papamichalopoulos and Others v. Greece [8]) and the denial of access and interference with the rights to the applicant’s property in occupied Northern Cyprus (Loizidou v. Turkey [9]).
The compatibility ratione materiae with the Convention of an application or complaint derives from the Court’s subject matter jurisdiction; a complaint is inadmissible if it relates to a right not provided by the Convention. in this instance, the Court was not satisfied that the applicant had established a right as an association representing a group of alleged victims to have the sculptures returned to Greece or to require a contracting State (the UK) to participate in mediation.
What the Court left open was the question of whether there is a general right to protection of cultural heritage.
Does this decision mean that the Greeks have lost their marbles, both legally and metaphorically? Although in this writer’s view the answer is no, the decision serves as a timely reminder that the issue of the Parthenon Marbles will never go away. Indeed, as the cultural heritage lawyer, Derek Fincham [10] has written, we need to have a more sophisticated conversation about this issue. When we speak of rights – cultural or otherwise – it is important to reflect that if individuals attempted to do what Elgin did 200 years ago they would find themselves in violation of domestic and international cultural heritage law.
Andre Malraux in Voices of Silence [11] wrote about the way in which objects of the past were stripped of their worlds and resettled chronologically in the land of art (in this case, a so-called universal museum in London). The Parthenon sculptures were conceived and designed and executed as integral parts of the Parthenon temple. They acquired their real conceptual meaning only in their natural and historic environment as a unified whole and, as such, form an indissoluble link with the cultural heritage of Greece. They are the keys to Greece’s heritage.
And yet – as Geoffrey Robertson QC [12] has written – that country’s enjoyment of the monuments is rendered ineffectual, if not severely diminished, by the continued retention of almost half the surviving sculptures in the British Museum. Every country is entitled to possess cultural property which enhances its own identity as well as enable an informed understanding and appreciation for the culture that produced it.
In summary, it is apparent the Athenians Association’s application was dismissed at a preliminary stage of the proceedings and on a clear jurisdictional point arising from the association’s lack of standing in relation to the rights it asserted had been violated under the European Convention. There was no real hearing on the merits and the decision, if anything, reinforces the clarion call for the Greek State to consider instituting legal proceedings against the UK – probably in the International Court of Justice – based on the evolving principles of customary international law in the area of cultural property heritage and cultural identity.
Given that the Acropolis monuments are also included on the World Heritage List of UNESCO, it can be argued that the Greek State has an obligation, as well as a right, to preserve the integrity of these structures. The Parthenon is emblematic of a country whose meaning is often found in its ruins. As one author has astutely observed, “when we contemplate ruins, we contemplate our future”.
That future lies in the reunification of all the known surviving Parthenon sculptures in Athens.