Ancient Heritage and Contemporary Causes of Action: A Conversation with Geoffrey Robertson QC
Could a developing legal theory resolve the centuries-old dispute over the world’s most famous pieces of cultural property?
Photo by Febiyan on Unsplash.
BY: tanner wadsworth, assistant online editor
Geoffrey Robertson is a prominent international human rights barrister. In a distinguished career spanning nearly five decades, Mr. Robertson has represented figures such as Salman Rushdie and Julian Assange, served as an appellate judge at the United Nations Special Court for Sierra Leone, and successfully sued the English Natural History Museum for the release and repatriation of Tasmanian Aboriginal remains. A Queen’s Counsel and Master of the Middle Temple, Mr. Robertson serves as the joint head of Doughty Street Chambers, Europe’s largest human rights law practice.
In 2011, the Greek government retained Mr. Robertson to explore its legal options regarding the Parthenon Marbles, a collection of sculptures that a British ambassador famously removed from Athens in the early 1800s and that now reside in the British Museum. These sculptures are perhaps the best-known examples of expatriated cultural property: culturally significant items that are central to the identity of one nation or people but are held in the archives of another.
Over centuries of warfare and colonialism, the cultural property of many nations has trickled into encyclopedic museums like the Metropolitan Museum of Art in New York, the Louvre in Paris, and the British Museum in London. The question of whether to return this expatriated cultural property presents major ethical, legal, and political implications and has vexed the international community for decades.
Informed by his experience working with the Greek government, Mr. Robertson offered innovative suggestions for solving this problem in his 2019 book Who Owns History? Elgin’s Loot and the Case for Returning Plundered Treasure. In this interview, the Bulletin sought Mr. Robertson’s ideas regarding the legality, ethicality, and probability of the return of the Parthenon Marbles, concluding with Mr. Robertson’s assertion of a new cause of action developing in international law: a nation’s right to possess its cultural property.
This interview has been edited for clarity and length.
Considering that Lord Elgin removed the last of the Marbles from Athens in 1812, and that centuries of sustained advocacy from such figures as Lord Byron and Melina Mercouri have failed to recover them, what persuaded you to take on the case?
Well, it was a challenge. I had already acted against the Natural History Museum over their insistence on keeping and DNA-testing the human remains of Tasmanian aboriginals who had been killed in a genocide by British soldiers and settlers shortly after Elgin made off with the Marbles, so the time delay was not necessarily a problem.
Greece had been demanding return of the Marbles ever since it became independent, in the 1830s, but it had relied on diplomacy and never turned to law. The reason why everyone seemed to think that law is now out of the question was because of the influence of an American law professor, John Henry Merryman, an ardent free marketeer who wrote law review articles in the 1980s claiming that the British Museum had an unassailable legal title to the Parthenon sculptures. But he was ignorant of their history, of English law and international law, and his argument that Greece had lost its rights because of delay in taking action in the English courts was nonsense because it could not, under any English law, take any such action.
It struck me that Merryman had misled a generation of historians and authors, and it was necessary to refute his factual assumptions (he wrongly thought that Greece’s demands for return had begun with Melina Mercouri) and his misunderstanding of English law that prevented the trustees from being sued. Although he had been the leading critic of what he called “the archeologists’ crusade” for repatriation of heritage and the chief protagonist (along with James Cuno) of the retention of stolen culture by “universal” museums, he nonetheless had to accept that Elgin had no property rights in the Marbles—no right to hack them off the temple and take them away.
Elgin was the British ambassador to the Ottoman empire, and the Ottomans were in occupation of Greece. He was wealthy, but he never offered to buy the Marbles—for the simple reason that he knew that the Ottomans would never have sold (they had turned down a French offer a few years previously). So instead he used lavish bribes to the civil and military authorities in Athens to turn a blind eye while his workmen pulled down these immortal sculptures of Phidias, packed the smashed pieces into crates stored at the British consulate, then transported them to London in the hope of selling them for a profit. In common parlance, he stole the Marbles. He despoiled a temple and made use of his ambassadorial office for gain. Thus begins—but does not of course end—the legal case for restitution.
You were confident that Greece would obtain a favorable result if it brought the suit you prepared against the UK in 2014. How has your outlook changed since then?
It has become somewhat stronger. I should explain that I was working with Amal Clooney and Professor Norman Palmer, and we developed a case suitable for the International Court of Justice. It was based on dicta from national courts, on the writings of jurists, on human rights and UNESCO conventions and on state practice—going back to the principles invoked by Wellington and Castlereagh after Waterloo, to force the return of all the treasures of Europe stolen by Napoleon. And of course, the allies (except Stalin) rejected the “spoils of war” doctrine and their “monuments men” restored Hitler and Goering’s loot.
The argument for an international law rule requiring the return of wrongfully taken cultural property has become more compelling since, with Macron’s acceptance of the Sarr-Savoy report and his beginning of a process to restore stolen artworks to Africa that had been plundered in the colonial period. As recently as 2019, the UN General Assembly voted overwhelmingly in favour of a Greek resolution endorsing the right to restitution, so “state practice” is going in a favourable direction.
In 2017, just a year after being sued over the Marbles in the European Court of Human Rights, the UK announced that it will only recognize the International Court of Justice’s compulsory jurisdiction for matters that occurred after January 1, 1987. How is this development likely to affect Greece’s efforts to recover the Marbles?
Not at all, if the General Assembly or UNESCO use their right to request an advisory opinion from the ICJ, delivered after a hearing in which Greece and the UK—and any other state—may make submissions. Given all resources and all the ethical rules that now exist about how museums should deal fairly with restitution claims, the question would be whether a norm of international law has now crystallized requiring the return of important cultural property which has been wrongfully acquired and which forms part of another nation’s heritage. The Marbles could be the test case.
Of course, you could say that an advisory opinion is not binding, but one of the few great things about Great Britain is that it generally upholds international law so this could well be the way forward.
Do any realistic legal means exist to compel the return of the Marbles to Greece? Or must advocates rely entirely on diplomacy and negotiation?
Diplomacy and negotiation have not worked for Greece for 190 years. The best chance came recently with Brexit. The EU might have tempted the UK to give back the Marbles in return for lowering the cost of its departure. But EU bureaucrats are not interested in culture even though they use the Parthenon as the symbol on their letterheads.
There has recently been a move in the US Congress to demand return and this may have some force now that Britain is desperate for a trade agreement with America. But otherwise, it’s off to court. And the UK parliament, not the British Museum, must be first to act, because unlike American museums, the trustees of the British Museum are shackled by a law that actually requires them to keep all their possessions. They must not “de-access” the property that they have acquired unless they have legislative approval. So, this law must be changed before the Marbles—or anything else—may be returned. It is a “finders keepers” law which reflects the colonial mentality of a country which believes in its own superiority.
Governments sometimes treat cultural property as chess pieces to achieve political ends. For instance, President Xi Jinping of China, who is working to deepen China’s ties with Greece, recently came out in support of returning the Marbles to Athens. Meanwhile, the conservative English Government continues to entrench its position that the Marbles are an important part of English national heritage. What role might growing nationalism in Greece, England, and elsewhere play in the Marbles’ future?
Yes, but you should understand that the Chinese people genuinely believe in restitution, because of the cultural loss they suffered during the Opium Wars. It was Lord Elgin’s son who led the British and French armies to attack the Old Summer Palace outside Beijing in 1860. They spent three days looting it of over a million heritage objects and then Elgin burnt it to the ground, incinerating 100 palace servants. The Chinese now have their own contribution to international law—the Dunhuang declaration—calling for the return of plundered cultural property, so this is another source for the new norm.
As for Britain, yes, the defenders of Elgin openly talk of the “Elginisation” of the Marbles. They have stayed in London so long that they have become English! This is intellectually absurd, of course, but it’s an argument they use because the others have all been refuted. They have told so many lies about Elgin’s right to take them that it is embarrassing. While I was writing my book, the notice outside the gallery said he had been given a license by “the highest Ottoman official in Athens.” I proved this untrue in my book and when visiting after publication, I noticed the story had changed—there is no mention now of this mysterious official. Opinion polls show that most people in the UK would be happy to see the Marbles returned to the New Acropolis Museum which has been specially built to receive them.
In your book on the Parthenon Marbles, you assert that a new cause of action is developing in international law, grounded in human rights principles. You argue that a nation’s right to possess the “keys of its history” is an attribute of its sovereignty, and that a violation of this right—such as holding vital cultural property in a foreign museum—warrants legal action in international courts. Can you talk about this new cause of action and how you came to support it?
Well, I had rather you read my book, which sets out at chapter length the sources of this new norm, with the conventions and customs and cases from national courts and history of state practice going back to Waterloo and indeed to the treaty of Westphalia (which had a lot about restoring artworks and castles). But of course I prefer—and indeed published a draft—of a Convention for the Repatriation of Important Cultural Heritage (CRICH). It defines “cultural property,” allows claims for its return to be decided by a tribunal with claimants having to show that it was acquired wrongfully, whether by war crime or bribery or threat of force and that there is no risk that it will not be safely preserved if it is restored to a museum in the country where it originated.
It is a remarkable thing for a new human right to develop or be discovered in international law. Has this ever happened before?
Of course. Every law student is told about those poor Cuban fishermen onboard the Paquete Habana, flying the Spanish flag, sunk by the US navy during the war with Spain. The US Supreme Court awarded them compensation because of an “ancient usage among civilised nations, beginning centuries ago and gradually ripening into a rule of international law.” This “ripening” process decides whether a rule has crystallized and is now set out in Article 38(1) of the Statute of the ICJ.
I developed a few new human rights rules when I was a UN appeal judge in its court in Sierra Leone—the first court to hold that it was contrary to international law to recruit child soldiers for frontline fighting. We also decided that international law made amnesties for crimes against humanity invalid and that journalists and human rights monitors could not be forced to give evidence and so on. We don’t have a world parliament to pass international laws, but we have conventions and customs and national courts’ decisions and jurist writings that can evolve into norms of international law.
What might the legal recognition of such a right mean for other expatriated cultural property held in museums around the world, such as the Benin Bronzes or the Rosetta Stone?
The Benin Bronzes should of course go back to the museum being built in Nigeria to exhibit them. They were taken by the British Army in a brutal assault in 1897 and sold in European museums to pay for this British colonial expedition. The Rosetta Stone is a different matter—it’s not unique (there are 17 extant copies of this particular decree) and it had been thrown out by the Egyptians as rubbish. It was only in the British Museum that it was deciphered and where it opened the door to the language of ancient Egypt. So, it really belongs there because that’s where its cultural significance was first appreciated, thanks to British and French scholarship. But we do need a Convention to make these distinctions.
But listen, black lives matter. And they mattered 150 years ago, when they were lost by the bullets and bombs from colonial armies which stole the things that mattered most to them, now exhibited in museums of the West—the White West I would prefer to say. It seems reasonable for them to be restored by law to the people for whom they matter most and from whom they were wrongly taken, no matter how long ago.
Tanner J. Wadsworth is a second-year student at Columbia Law School and the Assistant Online Editor of the Columbia Journal of Transnational Law. He graduated from Brigham Young University in 2017.