THE PARTHENON REPORT: The Hammer and the Nail (Part 2)

THE PARTHENON REPORT: The Hammer and the Nail (Part 2) 1

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

Last week, it was hard to concentrate on writing – with flames engulfing Attica, Evia, Rhodes and some of the choicest bits of the Peloponnese, from Ancient Olympia to the mountains of Arcadia and Mani. Friends’ farms and villages were consumed, and the oldest olive tree in Europe was reduced to ashes after faithfully providing sustenance and shade to goats and shepherds for 2,500 years. What Covid-19 has wrought worldwide in two years, fires did to Greece’s delicate ecosystem in just two weeks. The air outside was thick and noxious, with an eerie orange glow, and every morning we swept up from the veranda the ash remains of walnuts, chestnuts, oak and pine – and countless thousands of olive trees. Within this context, the plight of the Parthenon Sculptures didn’t feel compelling or existential enough to compete with the grisly news on television.

“These are what we fought for”
But then I recalled these words of General Ioannis Makriyannis, in his memoirs from the War of Independence. He understood that these antiquities were Greece’s touchstone and talisman – a symbol of her better self.  For millennia, this little nation has endured conquest and occupation, famine, earthquakes and so much more – but has always kept its pride and courage – and for 200 years has struggled to protect and reunify these sculptures as part of a multi-generational effort to rebuild and restore the country. Somehow, Greece has endured, and the Parthenon is the symbol of this endurance. It may not be an existential issue, but the reunification of these sculptures in Athens amounts to a national quest for wholeness and justice, and it matters on a level that is hard to describe. Like the War of Independence 200 years earlier, it is a project that concerns more than just Greeks and philhellenes – and more than just broken stones and a shattered national monument. So, it’s time to turn off the television and get back to work.

Who gets the ‘kids’?
When talking about bringing this dispute to court – any court – one has to assume that all diplomatic efforts have failed, because going to court involves, to a lesser or greater degree, burning the bridges of dialogue and diplomacy. The entire structure of a lawsuit pits two parties against each other in an adversarial, zero-sum contest that produces a winner and a loser – and much bitterness. Imagine a rancorous divorce case in which Britain and Greece are fighting over custody of the children (Sculptures). For two old friends and allies with such deep historical and cultural ties, this would be an ugly and destructive development. Bookmakers and jurists now uniformly agree that Britain would not fare well in such a procedure, and the damage to her reputation – and to the reputation of the British Museum – would be enormous, whatever the outcome.

Greek Diplomacy:  The dog barks, and the caravan passes
However, for three reasons (at least), it is clear that we have not yet exhausted other, more constructive possibilities. In the first place, mediation, the strongest and most mature tool of diplomacy, has not yet been employed in a well-planned or serious manner. Second, Greece has failed to put forward a win-win proposal that is anywhere near generous or imaginative enough to convince Britain and the British Museum that it is in their best interest to return the sculptures.  Finally, for many years now, the Greek Ministry of Culture has espoused a “strategy of diplomatic dialogue” that ranges from whining and name-calling to outrage and tantrums. After all this huffing and puffing, Britain has learned to ignore almost anything that is said about the Parthenon Sculptures by Greece, Greeks or UNESCO. So, one needs to take a step back from diplomacy as usual and clearly assess what must be done.  Over the past 50-odd years of spasmodic and ineffectual efforts to bring the Sculptures back home, neither carrot nor stick have been seriously developed and never considered together in any coordinated, strategic manner. This situation, however, has begun to change: a radically generous win-win proposal is finally being developed, and in case such a proposal is rejected, the legal option is finally ready to deploy.

THE PARTHENON REPORT: The Hammer and the Nail (Part 2) 3
Human rights lawyer Amal Alamuddin Clooney (C), Geoffrey Robertson (2nd R), head of Doughty Street Chambers, and David Hill (2nd L), head of the International Committee for the Reunification of the Parthenon Sculptures, during their visit to Athens in 2014 to meet with Government officials.

Time to describe – but not employ – The Stick
With the carrot left dangling in the imagination, let us now turn to the stick: The first serious step in the exploration of how international laws and legal principles might be used to resolve this dispute occurred in 2011, when the Deputy Foreign Minister of Greece’s Conservative Government, Konstantinos Tasoulas, came to London to see the renowned international barrister and jurist Geoffrey Robertson QC  at his Doughty Street Chambers, Europe’s largest legal practice specializing in International Law and Human Rights. With support from the Greek Prime Minister and funding from a generous shipowner, a 600-page legal brief was prepared by Robertson and a stellar international team including the late (and great) barrister Norman Palmer, a respected voice on cultural heritage, who studied all relevant treaties, conventions, laws and repatriation rulings; Amal Alamuddin (shortly to become Mrs. George Clooney), who researched the history of Greece’s many previous efforts to recover the Parthenon sculptures; and David Hill , the “renaissance man” of Australian business, former Chairman of the Australian Broadcasting Corporation and President of the International Association for the Reunification of the Parthenon Sculptures (IARPS).

One Peace is Worth Countless Victories
Over the course of several years, this team developed a case based on existing and emerging principles of International Law in several fields – including a blueprint for the kind of parallel diplomatic action that would be required in order to successfully bring this case before the International Court of Justice at the Hague, either for settlement as a “Contentious” proceeding between Greece and Britain or as an application for an Advisory Opinion from the Court. But while their work established the feasibility of this course of action, under Norman Palmer’s guidance this solution was always framed within the desire to reach an “amicable resolution” rather than one achieved in a lengthy court battle – a desire summarized by one of Palmer’s favourite quotes, from a 17th century peace treaty: “One peace is worth countless victories.” Two titles from his numerous law-journal articles also indicate that he and Robertson’s team were not some wild-eyed band of renegade barristers fixated on blood and battle. “The Best We Can Do? Exploring a Collegiate Approach to Holocaust-related Claims” and “Waging and Engaging: Reflections on the Mediation of Art and Antiquity Claims” make a convincing case for mediation – if the other party is ready to both talk and listen in good faith. If not, and if one’s best-laid plans either go astray or are rejected, one needs to have the legal option ready.

THE PARTHENON REPORT: The Hammer and the Nail (Part 2) 4
The International Court of Justice in The Hague

The ICJ Option and Two Paths to Justice
The most suitable international venue for a judicial resolution of the Parthenon Sculptures case would be the International Court of Justice, which is the primary judicial organ of the United Nations. The ICJ settles disputes between states and gives advisory opinions on international legal issues. Interestingly enough, the UK has long been one of the Court’s strongest supporters, unilaterally accepting the jurisdiction of the Court in 2005 and even helping author the ICJ handbook on the acceptance of the Court’s jurisdiction by other nations. It is against this backdrop of traditional respect for international law in general and the ICJ in particular that we now briefly examine the two ways in which the UK itself might be held to account by the world’s foremost judicial institution.

Contentious Proceedings
States which have accepted the jurisdiction of the Court (Greece accepted the Court’s jurisdiction in 1994) may bring cases against other states (such as the UK, which accepted the Court’s jurisdiction in 2005), whether or not those other states agree to willingly participate in such proceedings. And if the Court finds that other states (China, Nigeria, Egypt, etc.) are engaged in separate proceedings against a common opponent (the UK) in relation to the same issue (repatriation or other forms of restitution), the Court may invite them to join the suit as well and to contribute evidence and testimony. Failure by Britain to respond or appear would not prevent the proceedings from taking place. Moreover, leaving the door open to last-minute agreements and changes of heart, a case may be brought to a conclusion at any point if the applicant state (Greece) decides to withdraw its suit or if the two parties reach an out-of-court settlement. It is interesting to note the broad base of judicial sources the Court may draw on in reaching a verdict: international treaties and conventions in force; international custom; general principles of law; judicial decisions from other similar cases; and the teachings and testimony of respected jurists and law professors. Settled and emerging principles of Human Rights Law, Cultural Heritage Law, Environmental Law, International Common Law and Commercial Law may all be taken into account as the jurists on the ICJ work to arrive at the most just resolution of a difficult dispute. In this setting, statements such as “It was all perfectly legal” and “Lord Elgin had clear legal title to the sculptures” would not go untested any longer. But more important, every aspect of the case, then and now, would be examined through the wider lens of justice.

THE PARTHENON REPORT: The Hammer and the Nail (Part 2) 5
The ICJ and its Justices

Application for an Advisory Opinion
Only the five major organs of the United Nations and 16 specialized agencies may seek advisory opinions from the ICJ. The UN General Assembly and the Security Council may seek an advisory opinion on any legal issue, while the other agencies, such as UNESCO, may seek an opinion only on matters pertaining to their particular responsibilities, such as Cultural Heritage in UNESCO’s case. Greece, with or without other sympathetic nations, could ask the UN General Assembly or UNESCO to apply for an advisory opinion regarding, for instance, “the repatriation and reunification of important elements of cultural heritage removed without the informed consent of the source nation or community” (sample text my own) and could detail examples, such as the Benin Bronzes and Parthenon Sculptures, to illustrate the principle in question. Despite the fact that both the General Assembly and UNESCO have previously sided with Greece on this issue of Justice and Cultural Heritage, nevertheless, a high-level diplomatic campaign, possibly lasting one or two years, would probably be necessary to secure the votes needed for one of these UN organs or agencies to apply for an advisory opinion. Offers of help in this matter have already come from a wide range of foreign governments, and Geoffrey Robertson’s team would be instrumental at every step of the process in helping craft the language and legal strategies related to obtaining a strong advisory opinion from the Court. Other states may also provide testimony and information to the Court as it considers all aspects of the case. While an advisory opinion is not, technically, legally binding, the full prestige and authority of the Court lie behind such opinions, and the applicant body (UN General Assembly, for instance) may take further action as if the Court’s opinion now constituted a settled principle of international law.

What Would Britain Do?
As a freshly sovereign “Global Britain” tries to reshape its identity on the international stage, its reputation for honour and justice now means more than ever. For the ICJ to entertain a high-profile case (either Contentious or Advisory) on the repatriation of the Parthenon Sculptures probably constitutes Britain’s worst nightmare – which is why the UK has been so glad and so emboldened by Greece’s reckless renunciation of the legal option. Most probably, as in the case of mediation or arbitration, Britain would challenge the Court’s competence to decide on the merits of the case.  It might also reject the Court’s jurisdiction, but this would be a hard act to pull off – especially after helping author the handbook on how other nations could and should accept the Court’s jurisdiction.  In order to avoid such a predicament, Britain might be motivated to study a serious win-win proposal with a little more care and consideration.

Naïveté and Misplaced Faith
In 2013, as we had discussed in last week’s column, UNESCO sent a letter to Britain with an offer to mediate the dispute. The next year, while Greece and UNESCO were still waiting to hear Britain’s response, Geoffrey Robertson’s team arrived in Athens to discuss strategy with the Government. Nice things were said about the legal case, but both the Prime Minister and Minister of Culture Konstantinos Tasoulas underlined that they had asked UNESCO to mediate in the Parthenon dispute and were still hoping for a diplomatic resolution.  As soon as the lawyers had gone home (but while the newspapers were still buzzing about Amal Alamuddin Clooney – a buzz that continues to this day, seven years later) Minister Tasoulas publicly declared that litigation was currently off the table: “We decided not to go to the courts. We decided to ask UNESCO to mediate so that the Parthenon Sculptures will be reunited, having on our side distinguished Greek and foreign counsels.” Then, as if for Godot, they waited for Britain’s response… and waited… and waited some more.

Surprise, surprise
In 2015, when the UK Government finally got around to responding to (and rejecting) UNESCO’s mediation offer, various groups around the world reacted in haste and dismay. In last week’s column, we presented one such reaction – from the UK Parliament. Meanwhile, back in Athens, the Association of Athenian Citizens, a private group (i.e. “loose cannon”), filed a lawsuit against the UK at the European Court of Human Rights (ECHR). This bid was rejected, however, on the basis of two technicalities:  that the group, as a private association, could not claim that its rights had been violated, and second, because the alleged theft of the sculptures took place 150 years before Great Britain signed up to the human rights convention which established the Court’s jurisdiction, the Court lacked the authority to consider the lawsuit and was unable even to consider its merits.

THE PARTHENON REPORT: The Hammer and the Nail (Part 2) 6As with the rejection of UNESCO’s efforts at mediation, Greece and its allies extrapolated the wrong lesson from this episode as well. Even though the lawsuit by The Association of Athenians was a private initiative that was not recognized by the Government and was launched without research or planning – everyone quickly jumped to the conclusion that bringing the case of the Parthenon Sculptures to an international court was too risky and involved the possibility of rejection or defeat. With a leftist Government now in power in Greece, a new Minister of Culture, Nikos Xydakis, distanced the Government even further from the pursuit, or even preparation, of a legal option, declaring: “You cannot go to court over every issue, and besides, in international courts, the outcome is uncertain. The road to reclaiming the sculptures is diplomatic and political”. This was music to British ears and a game they could play for another 200 years.

Experienced diplomats themselves, Robertson’s team put the legal preparations, now nearly complete, on hold until the proper time, and until a more savvy Greek Government might be ready to address this issue on a serious strategic level, rather than simply using it for rhetorical effect and political expediency. Robertson declared: “There are alternative ways to resolve the issue, such as mediation, international treaties, international courts… Great Britain is great because it respects international law.”
Norman Palmer added that, despite Britain’s refusal to talk: “we live in an ever-changing world, and laws evolve. As international laws change, so do museums.” Meanwhile, Amal Alamuddin Clooney, along with her colleagues, went back to mediating and trying high-level international cases of great complexity – and with great success.

2021 – and ready for a new start
In addition to the multiple shocks of: Climate Change, Brexit, Covid-19, George Floyd’s murder and subsequent social unrest and calls for justice, this year also marks the 200th anniversary of the Greek War of Independence and the 75th anniversary of the establishment of the International Court of Justice. Considered all together, which is, admittedly, a rather mind-boggling enterprise – now is not necessarily a bad time to put our house in order, resolve old problems and face the future with as much boldness and imagination as we can muster.


NEXT WEEK: We will consider the issue of ”Justice” in a broader context.


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


 

Introducing The Parthenon Report

Feature Image : Copyright Nick Bourdaniotis | Bourdo Photography

 

 

 

 

 

No Comments Yet

Leave a Reply