That we've broken their statues,
that we've driven them out of their temples,
doesn't mean at all that the gods are dead.- IONIAN, Constantine Cavafy
Before setting forth on our final (2-part) expedition into the land of law, this time involving the case for taking the dispute over the Parthenon Sculptures to the International Court of Justice (ICJ) at The Hague, let’s recap for a moment last week’s encounter with the British Museum Act 1963, in which we looked the Act straight in the eye without blinking and realized three things: First, in order for the British Museum to deaccession and return the Parthenon Sculptures, either the Act itself would need to be amended, or separate, supplemental legislation would need to be enacted, as has already occurred twice in recent years to accommodate other just claims for repatriation or restitution. Second, this would happen only if both the Museum and Government decided that it was in their best interests to return the Marbles. Finally, we may have also realized that there is still a big difference between removing an obstacle and achieving one’s goal. Having enabling legislation in place is necessary, but it is not sufficient. The larger issue still remains: how to convince both Museum and Government that returning the Sculptures is the right thing to do - and in their best interests.
Challenging Our Instincts
For the hammer, every problem is a nail. Surgeons cut; politicians promise; scorpions sting; lawyers take people to court, and children steal cookies. Creatures of habit, we tend to do what we’re good at. Assuming, of course, that we are actually good at our job, this is not necessarily a bad thing. However, expertise in one area often blinds us to an array of other solutions, possibly more effective. Let’s take our friend Socrates for a minute, and imagine his rambling conversations, which, not quite as aimless as they first seem, lead to a new appreciation of questions to which our old instinctive answers no longer seem quite so appropriate. This is unsettling, even downright annoying. After enough of this sort of thing, one begins to empathize with the ancient Athenians for wanting to get him out of their hair. However, if a question is important enough, perhaps it is worth being dragged out of our comfort zone to look at it from another angle, to toss our pet proposals (but not the pets) out the window – or set them aside for a while in order to test other ideas. Now, if we spend this extra time and trouble and still come back to our original solution – then we can take some comfort that our instincts were not so utterly wrong. Chances are, however, that the new version of our old idea looks different in both important ways and subtle details.
A Drastic, Last Resort
Take, for example, the proposal of bringing the case for the return of the Parthenon Sculptures to the International Court of Justice (ICJ) in The Hague, either to try the case or apply for an advisory opinion. This is a rather drastic option, in equal measure shunned by the faint of heart and championed by a bold class of barristers, jurists and others who are accustomed to shaping and applying international law at its frontier edges. Those who best understand this process believe that there is now sufficient international support for a legal case to succeed but that it should only be undertaken with thorough preparation (which has been done) and used only as a last resort, after all diplomatic efforts have failed.
“Sue the Bastards!”
There is something deeply satisfying about this phrase. On the most primitive level, it evokes Biblical images of an enemy’s family and tribe laid to waste, driven from their homes, livestock slaughtered, taken or consumed. On a more civilized level, judicial procedures allow both sides to put forward their best arguments, call expert witnesses, examine all relevant evidence and then trust in the wisdom and fairness of the court to decide which party has the greater share of right.
But first …. other ways to skin a cat
When looking for new ways to access justice and resolve an old conflict without resorting to fisticuffs in an alley behind Parliament, there are many approaches to consider, ranging from a quiet discussion over dinner to more formal negotiations or the use of mediation, arbitration or judicial settlement. As in jazz, however, old, smoldering problems like the dispute over the Parthenon Sculptures often require (and inspire) skillful improvisation. Additionally, some standard approaches, such as mediation, may have been tried prematurely in the past, by the wrong parties, or without the necessary inducements and incentives needed to make such an approach truly effective. We will look at UNESCO’s attempt to mediate this dispute in a moment, but before doing so, let’s first look at mediation and arbitration in more general terms.
Mediation vs. Trench Warfare
Mediation (like its more formal and binding cousin, arbitration) is usually most successful when both parties feel they have an equal or greater share of justice on their side – so that entering into a fair and impartial process has a good chance of bringing about a positive result or acceptable compromise. Mediation, as a flexible but fairly structured process of diplomacy, can be a long, drawn-out affair without a clear result, and neither party binds themselves to a decision. As the name “mediator” suggests, there is usually a person or institution in between the two parties, acting as a buffer and neutral conduit of ideas, offers and demands. Mediation helps cool tempers; it circumvents the distrust and antipathy that may have accumulated over years and provides both sides with a respected and impartial listener. Depending on the mediator and one’s opinion of their wisdom and impartiality, mediation often clears the way for a discussion of novel approaches, compromises and solutions that neither side might have considered before. The dispute over the Parthenon Sculptures is a classic example of two sides which have become stuck in their positions and cannot move: cultural trench warfare. Mediation provides a crucial respite whereby the two sides can meet in the middle, exchange cigarettes and photos of home, and begin to imagine life beyond the conflict.
By contrast, in arbitration both parties begin by accepting the authority and jurisdiction of the arbitrator and bind themselves to complying with the final decision. In this respect, arbitration is more like a judicial process. Not surprisingly, neither the British Government nor the British Museum have accepted either of these courses of action, mediation or arbitration, and in 2015, when Greece rejected the option of pursuing or even considering a judicial settlement, the UK felt that they had found a winning formula for maintaining the status quo and retaining the Parthenon Sculptures: reject the authority and jurisdiction of mediators, and repeat the declaration that the acquisition and ongoing retention of the Sculptures was “perfectly legal” – knowing that this declaration would not be tested in court.
UNESCO’s Attempt to Mediate
On 9 August 2013, UNESCO, through its Intergovernmental Committee for Promoting the Return of Cultural Property, asked the UK to consider Greece's request that it (UNESCO) mediate in the dispute over the Sculptures. Considering the fact that UNESCO had previously issued numerous resolutions calling on Britain to return the Sculptures or enter into constructive dialogue on the issue – and further noting the title of the Committee itself (above), it was not surprising that Britain rejected UNESCO’s offer to mediate. It was like calling in one’s mother-in-law to settle a marital dispute. There was no upside for the UK in such a process, and the British Museum still feels that there is really nothing to discuss. What was surprising, however, was the fact that the British Government and Museum did not even bother to respond to UNESCO’s invitation for 2½ years – clearly demonstrating their scorn for the institution and its authority, and underscoring their belief that “possession is nine-tenths of the law”.
29 months later, the UK Government responds
In a letter to UNESCO on 26 March 2015, Culture Minister Ed Vaizey and Europe Minister David Lidington wrote:
"We have seen nothing to suggest that Greece's purpose in seeking mediation on this issue is anything other than to achieve the permanent transfer of the Parthenon sculptures now in the British Museum to Greece on terms that would deny the British Museum's right of ownership" (emphasis my own). The ministers went on to insist that the sculptures were legally acquired by Lord Elgin "under the laws pertaining at the time, and the trustees of the British Museum have had clear legal title (emphasis my own) to the sculptures since 1816".
The Reply from the British Museum
Sir Richard Lambert, Chairman of the British Museum Board of Trustees at that time, also responded on the same day (2½ years later) that:
“The British Museum, as you know, is not a government body, and the collections do not belong to the British Government. The Trustees of the British Museum hold them not only for the British people, but for the benefit of the world public, present and future. The Trustees have a legal and moral responsibility to preserve and maintain all the collections in their care, to treat them as inalienable (emphasis my own) and to make them accessible to world audiences (who are able to travel to London). Museums holding Greek works, whether in Greece, the UK or elsewhere in the world, are naturally united in a shared endeavour to show the importance of the legacy of ancient Greece. The British Museum is committed to playing its full part in sharing the value of that legacy for all humanity.”
The Reaction from the British Parliament
It seems that the combined (and tardy) responses of the Government and Museum were a bridge too far for many – even in the UK Parliament – and that tempers and patience were beginning to wear thin.
"Mediation with UNESCO for the Repatriation of the Parthenon Sculptures"
EDM (Early Day Motion) 852: tabled on 09 March 2015:-
“That this House is aware that half of the Parthenon sculptures, controversially removed from Athens by Lord Elgin 210 years ago using a flimsy legal justification during the Ottoman occupation of Greece, remain on display in the British Museum; notes that, when presented with the facts, the British public favours the reunification of the Parthenon Marbles in Athens; further notes an opinion poll conducted by YouGov in October 2014 which shows only 23 per cent of the British public think they should stay in Britain; is further aware that the British Museum has abandoned most of its conventional arguments and now advances the novel concept of a universal museum; regrets the Government's apparent decision to reject the offer from UNESCO to mediate with the Greek government; and calls on the Government to reverse this decision and to demonstrate that Britain is prepared to express its standing in the world by engaging in a gracious act to reunite these British-held Parthenon sculptures with those now displayed in the purpose-built Acropolis Museum in the shadow of the monument to which they belong, the Parthenon in Athens.”
A (rare) instance of agreement with the British Government and Museum
Britain believes, rightly or wrongly, that the Parthenon Sculptures are legally theirs to keep, that they have everything to lose and nothing to gain by sending them back to Athens – and that UNESCO’s offer of mediation was simply a ruse (akin to the Trojan Horse) to further Greece’s claim. The problem with this episode in the convoluted history of the Sculptures is that, while mediation could have provided (and still could provide) a break in this simmering impasse, this particular offer of mediation was ill planned and poorly considered. Although mediation, under the right circumstances, is a powerful diplomatic tool, its success depends, to a great degree, on the choice of a mediator. UNESCO is far from a neutral party. It has a well-documented bias in this case (see sample declaration, below – as well as UNESCO’s logo, which is a stylized image of the Parthenon). Moreover, Greece was presenting no serious incentives worth considering in exchange for the Museum giving up its most important treasures. Under these circumstances, Britain was right to refuse mediation. The manner in which it did so, however, was rude, imperious and provocative – and sent both parties back to the trenches.
Declaration from UNESCO’s 1981 World Conference on Cultural Politics:
“Considering that the removal of the so-called Elgin marbles from their place in the Parthenon has disfigured a unique monument which is a symbol of eternal significance for the Greek people and the whole world, and considering it is right and just that those marbles should be returned to Greece, the country in which they were created...[The Conference] Recommends that Member States view the return of the Parthenon marbles as an instance of the application of the principle that elements abstracted from national monuments should be returned to those monuments.”
The Big Stick
Faced with the ongoing obstinance and arrogance of Britain’s refusal to discuss this issue, it is only natural that one should reach for the biggest stick available, assemble the villagers, pass around torches and pitchforks and head for the castle. Such responses from Britain routinely provoke frustration and fury among even the most mild-mannered academics. But when Britain is backed into a corner, with no face-saving alternatives available, stonewalling and curatorial diversions (“retain and explain”) are the only options left. In 2015, and still today, with no creative win-win solutions on the table and no practical consequences for Britain’s continued defiance of public opinion and international pressure, even the most respected and impartial mediator could not break such an impasse. There was no carrot – and no stick. In the face of ongoing taunts that it was all perfectly legal, and a continued refusal to even talk, it was only a matter of time before Greece and her supporters around the world began taking a closer, more serious look at the legal option.
NEXT WEEK: We will continue this discussion and look specifically at the “Big Stick” that is now nearly ready to deploy – if needed.
ABOUT THE PARTHENON REPORT | DON MORGAN NIELSEN:
In this bicentennial year since the birth of the modern Greek State, of both pandemic and celebration, Greek City Times is proud to introduce readers to a weekly column by Don Morgan Nielsen to discuss developments in the context of history, politics and culture concerning the 200-year-old effort to bring the Parthenon Sculptures back to Athens.
Classicist, Olympian and strategic advisor, Don Morgan Nielsen is currently working with an international team of colleagues to support Greece’s efforts to repatriate the Parthenon Sculptures.
Click here to read ALL EDITIONS of The Parthenon Report by Don Morgan Nielsen
Feature Image : Copyright Nick Bourdaniotis | Bourdo Photography