Daylight robbery?

For decades, attempts to get the Elgin marbles returned to Greece have failed. Now a legal challenge hopes to break the stalemate. Jon Robins reports
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The Independent Online

The seemingly intractable row over the return of the Elgin marbles to Athens seems to be forever locked in diplomatic stalemate – until now, that is. A group of UK lawyers – including a distant relative of Lord Elgin, and backed by a powerful collection of Greek shipping bosses – believe that a legal action could force the British government to return the famous marbles to the Greeks.

"The Greek government has been trying to do this through diplomatic channels now for 40 years, and they have got nowhere," says David Charity, a shipping lawyer based in London, who is behind the latest initiative, the Parthenon Marbles Trust, to send the sculptures back to their home.

Charity has joined forces with the well-known Greek businessman, George Lemos, who is backed by a number of wealthy shipping bosses. Louis Blom-Cooper QC, Dominic Dowley of Serle Court and Bruce Tattersall, an art historian-turned-barrister, are advising the trust. It is Mr Tattersall who is a relative of Thomas Bruce, the seventh Earl of Elgin; he also takes his Christian name from the (alleged) art thief.

Could the lawyers succeed where decades of quiet diplomacy have so far failed? Well, actually, no. At least, that is the unambiguous view of one veteran campaigner, who is deeply unhappy at the prospect of a bunch of lawyers derailing years of patient persuasion. A legal action "just wouldn't work" anyhow, declares Eleni Cubitt, the campaign manager of the British Committee for the Restitution of the Parthenon Marbles.

"I don't think a legal battle will be resolved for 10 or 20 years," Cubitt argues. "The British have enormous difficulty in admitting that they should never have removed them and what they did was not legally and morally right."

It is not for the lack of a strong legal case. Cubitt believes that the British Museum, where the marbles have been on display since 1816, have never been able to prove that the taking of the sculptures was lawful. But their fight is a moral one and not a legal one.

Nonetheless, David Charity sees the taking of the sculptures as "a simple claim for conversion". Of course, there is nothing simple about this timeworn story. Its central character is cast either as cultural pillager or, as the British Museum recently put it, "an unjustly defamed" lover of the arts, depending on your point of view.

Elgin was British ambassador to the Ottoman Empire in 1799, when Greece was one of its colonies. He was given permission to sketch and excavate sites, including the Parthenon, where his men began removing as many sculptures as they could. It was Elgin's claim that he had official sanction to do this, but only an Italian translation – which is known as the firman – exists of that alleged agreement. The alternative version of events is that he bullied and bribed the officials. He was forced to hand over the sculptures in order to settle a debt to the Government, which, in turn, vested the marbles to the British Museum through the Elgin Collection Act of 1816.

"Any law student knows the Latin tag, 'Nemo dat quod non habet' means that you cannot transfer legal title to something that you don't own," argues David Charity. "Title to the sculptures remains where it has been for two-and-a-half thousand years – that's to say, with the Greek people."

"You could make an argument that all the elements of theft exist but it was all so long ago and before the Greek state existed," comments Geoffrey White, a barrister on the committee for the restitution of the marbles. "The legality is not conceded, but it's not central to our argument."

Bruce Tattersall, a former curator of the Wedgwood Museum, believes that there is a wider principle concerning the ownership of cultural property at stake. "I take the line that museums are like orphanages, and pieces of art that no longer have a home can live comfortably in museums, but where there is a home, the argument becomes stronger that they belong back there."

Even under conventional English law, the marbles are "fixture and not fittings", Tattersall argues, and consequently form part of the building. "If you turned the Parthenon upside down with the sculptures on it they wouldn't drop off."

Just to muddy the waters further, there is little consensus in legal academic circles over the legality of the British Museum's ownership. John Henry Merryman, a law professor at Stanford University in California who specialises in art law, is an expert on the history of the Elgin marbles. He started his research believing that Brits were guilty as charged of cultural imperialism, but discovered with "growing horror" that this was not the case. In fact, he points to historical proof that the Constantinople government subsequently ratified what Elgin had done on two separate occasions.

"So they were legally acquired by Elgin and he could then transfer title to the British government," the professor argues. He believes it to be "rather strange" that the British Museum is sticking to the more dubious line that it is the 1816 Act that confers ownership.

Nonetheless, the prospect of a legal challenge is big news in Greece. The leading daily Kathimerini recently ran a wildly enthusiastic comment piece, singling out the efforts of David Charity for praise.

However, Theo Sioufas, the Greek lawyer assisting the legal challenge in Athens, acknowledges that the politicians are set on diplomacy at the moment. It is a problem for any Anglo-Greek action, as they need the government in Athens onside. According to Sioufas, churches and mosques have their own legal personality and can bring an action in their own name. "Whether this can be done is a matter that requires the prior decision of the Greek government because someone has to represent the temple," he argues. "For the time being, I can't see the government moving from the position it has adopted."

But the biggest hurdle is that the critical event took place more than 200 years ago. Charity reckons they can get around the six-year time bar because of the comments of Robert Anderson, director of the British Museum, earlier in the year. In an article for The Times, he asserted that the museum's legal ownership was "unassailable". It was this claim that provoked the ire of George Lemos and his wealthy colleagues.

"We're going to sue for 'iactitation' of title," Charity declares. He goes on to explain that this obscure and medieval tort (which comes from the Latin word meaning "I boast") covers dealing with goods in a manner inconsistent with the rights of the true owner, and that would include Anderson's assertion.

The restitution committee has been exploring the legal issues for years and thought they had heard everything. But, apparently, not "iactitation". "It's always exciting to have obscure corners of the law illuminated," notes an unconvinced Geoff White. "But I am not holding my breath."