Alkan Shenyuz, a barrister with Church Court Chambers in London and a specialist in international law, summarises the key legal arguments for and against the return of the Elgin marbles to Greece and gives his assessment on where they should be today.

The orchestrated plunder and looting of valuable works of art towards the end of the Second World War continues to resonate in today’s art world. Works of art once thought vanished forever continue to re-surface raising questions of ownership and restitution. Much of the Russian art loaned to Soviet embassies in Germany and other parts of Europe has never been returned, some of which remains on display in European museums. Returning stolen works of art may, at first glance, appear to be a straight forward matter, but who ultimately owns them is a complicated legal question and largely a point of view when it comes to more historical works. Russian museums and Chinese collectors will be watching with interest as the question of who owns the Elgin marbles is raised once again.

The issue of who owns the ancient marble sculptures which once sat atop the Parthenon in Greece has remained a fascinating debate since the time of their removal by Lord Elgin in 1801. More recently, the debate has received further prominence by the high profile visit to Greece by my learned friends Geoffrey Robertson Q.C. and Amal Clooney who argue that the Greek government has “just cause” to demand the return of the marbles. Powerful arguments for the return of the marbles have been made before but what makes this most recent attempt so striking is the Greek government’s concentration on the legality of the British Museum’s claim to retain them in the United Kingdom. Examination of the question of ownership and restitution from a legal perspective has the potential to draw in other historic works of art. ownership of which has long been considered a settled matter. Many ancient works of art from India and China remain in museums and galleries far from where they were conceived or where their owners happen to be. The answer, if it proves decisive, is likely to have significant ramifications, not just for lawyers, but also for the art world. It is possible, of course, that the question as to who owns the Elgin marbles may belong to a different category since underlying the issue is an important legal document which purports to give the British Museum a valid claim. It is this document that is now under intense scrutiny and the subject of discussion of much of this article. Whatever the final outcome of this mesmerising debate, it is more than merely fanciful to surmise that a paradigm shift in terms of legal, cultural and aesthetic norms, much like that inspired by ancient Greek philosophers at around the time the Parthenon was built, is quite likely to occur.

Stele

To say that these classical marbles are historically important is to somehow under-state their exceptionality. The stone central to the collection and laid claim to by the Greek government is a marble shaft measuring 2.31-high which bears the socalled Sigeion inscription. In the 1710s, this marble shaft also known as stele caught the eye of the British consul in Smyrna, William Sherard outside a chapel in the small village Yenisehir, less than 15 kilometres from what was Troy near the Dardanelles in Aegean Turkey and close to the site of the ancient city of Sigeion. To a scholar, the stele’s exceptional significance was instantly recognisable. The inscription is a rare example of the Greek alphabet, written in so-called boustrophedon starting from left to right, with the next line following on from right to left. Few such inscriptions were known at the time and any specimen was greatly sought after. It was even thought to be the oldest Greek inscription in existence, and has been dated to around 550 BCE. The text itself is written in two slightly different Greek alphabets and dialects, Ionian and Attic. It is most probably a memorial monument of some kind, and, as is common in early Greek inscriptions, it is the stone itself that speaks to the world. The most striking part of the script reads ominously:

“I am of Phanodikos, son of Hermokrates, of Prokonnesos; and I gave a mixing bowl [krater] with a support and a strainer for the prytaneum to the citizen of Sigeion as a memorial; if I should suffer in any way, care for me, citizens of Sigeion, and Aisopos and his brothers made me.”

Firman

To understand why this debate has endured for so long one must look at the document which purports to legalise Lord Elgin’s removal of the marbles. This document is the single most important aspect of the debate and the source of all contention in my opinion. Many scholars and art historians have sought to detract from its critical importance as the debate moves to other non-technical moral arguments relating to questions of aesthetic cohesion, which could be achieved by presenting them in the historical environment in which they were conceived. The document to which I refer is the so-called firman. A firman was an imperial command or decree issued by the ruling Sultans of the Ottoman Empire, often in writing, requiring their subjects to either do something or refrain from doing something. Sometimes, it was combined with some form of passport allowing persons access to a certain region in the Ottoman Empire. It was understood to be both official and binding and compliance was duly demanded. In the case of firman sought by Lord Elgin the document which he received was not without its discrepancies; discrepancies which I am of the opinion are not insurmountable and do not detract from the document’s ultimate validity or authority. A number of scholars have taken issue with the fact that the document itself was not actually a firman since the Sultan himself did not issue it. It was instead issued by Sejid Abdullah, Vali of Anadolu, who was appointed Kaimakam (acting Grand BRIC 106 Vizier) in December 1799, since the Grand Vizier, Kor Yusuf Ziyauddin Pasha (nicknamed Djezzar, ‘butcher’), was himself in Egypt on a military campaign. The Kaimakam was, therefore, the highest official in Constantinople, answerable only to the Sultan. The letter was addressed to the Cadi (chief justice) and the Voivode (civil governor) of Athens who between them exercised day-to-day control in the region on behalf of the Sultan.

The fact that it has come to be known as a firman stems from its reference as such by Rev. Philip Hunt, Lord Elgin’s chaplain and de facto curator, who actually orchestrated the legal process at the time on Elgin’s behalf. Hunt referred to the order as a firman in his correspondence on several occasions and crucially for the purposes of a Parliamentary Select Committee Report, which he helped to prepare in 1816. Indeed, use of the word firman was used by foreign travellers and visitors to refer to a wide range of official documents, some more important than others. Detracting scholars argue that only a firman as issued by a Sultan is an official decree in the strictest sense but there is little doubt that the Kaimakan would have enjoyed sufficient capacity and authority to issue an official order with no less legal effect than an imperial firman and he would have, most certainly, had the necessary authority to issue this order in relation to its particular subject matter. In fact, Hunt had received an imperial firman a year earlier in relation to a number of other important antiquities and it is arguable that some sort of a precedent had been set. In other words, there was nothing out-of-the-ordinary with this particular request.

Furthermore, there has been nothing in the way of evidence to suggest that the Sultan, on his return from Egypt or anytime thereafter, sought to repeal or limit the Kaimakan’s order. In fact, quite the contrary is true and should be understood in the wider context of the political relations and military co-operation between the British and Turks at the time of the French invasion of Egypt, a hitherto Ottoman territory. Having played a crucial role by providing resources and funding for the British invasion of Aboukir Bay in March 1801, which ultimately led to a joint British-Turkish victory over French forces, nobody was higher than Lord Elgin in the Sultan’s estimations. Elgin was singled out for much praise and lavished with generous gifts. While the all-important Kaimakan order may have been issued (in July 1801) before news of the conquest reached Constantinople in September 1801, it is difficult to make the case that the effect of the order had not been de facto ratified by the Sultan or that his consent had not been given implicitly in the course of his actions. He would certainly have had knowledge of Elgin’s activities by the time of his return and indeed the removal process actually lasted for another nine years and required and received several more firmans to secure every item, which was to be transported to England.

Another aspect which has troubled some scholars is the crucial fact that the only remaining evidence of the order is a contemporaneous Italian translation. Much is disputed about the details of this translation and its circumstances. Some have also questioned whether it is a forgery of some kind. According to Dyfri Williams (Lord Elgin’s firman, Journey of the History of the Collection, 2009), the text of the translation begins with a preliminary explanation of the interest of Lord Elgin in the culture of ancient Greece. This is then followed by the phrase that Elgin has at this time expressly “requested that it be written and ordered that”, which precedes the details of the request, namely that his team of artists be allowed to do a variety of things unhindered, especially to set up scaffolding, make moulds, measure, dig and remove inscriptions and figures. At the end, the translation notes the seal or signature of the Kaimakan. What is so striking is that the reference to removal of the marbles is not set out in any great detail and it is the absence of such detail which Hunt later capitalised on in favour of Lord Elgin’s desires when he presented the original document to the Voivode in the expectation of his fulfilment of the terms of the order.

The translation was made by a senior translator by the name of Antonio Dané and is understood to contain the necessary watermarks, which verify its authenticity. It is worthy of note that, at the time, translators or dragomans were treated as diplomats rather than mere translators and had a certain status in negotiations on behalf of foreign dignitaries. Dané came from a respected Venetian family and served the British embassy for over 40 years. While his old age prevented him from being the First Dragoman, an honour that went to his younger ambitious colleague, Bartolemao Pisani, Dané was considered to be both trusted and loyal to the British. He regularly made his translations in Italian and French although he spoke English fluently. As so much turns on the precision of the translation of the original Turkish version, it is difficult to countenance any failings or inaccuracies on the part of Dané in producing an accurate translation. Moreover, the circumstantial evidence suggests that Dané was well versed in this type of work and this particular translation would not have presented him with any particular technical challenge. In fact, he is known to have previously translated other firmans ordering the removal of other antiquities in surrounding areas.

Summary

In conclusion, therefore, it is quite reasonable to argue that the collection of marbles were removed by Lord Elgin under a lawful mandate issued by the rightful authority at the time these events took place. There is no evidence to suggest that the totality of Lord Elgin’s activities amounted to an illegal act under the prevailing legal system, which governed the region from where the marbles were taken. In these circumstances, it is not plausible to see the case for the return of the marbles to Greece exclusively as a legal battle. Instead, the arguments in favour of one way or the other will most likely turn on cultural or moral grounds. The tragedy is that without the original document it is difficult to imagine the legal argument ever becoming settled once and for all. Instead, scholars will have to make do with a translation of the original, which by all accounts should be taken to be authentic and reliable. More generally, without a final legal settlement of this dispute, the art world will be left guessing as to the true ownership of other historically important artifacts around the world.