A LEGAL AND MORAL ISSUE - WAS A VALID FIRMAN ISSUED?

LOBAL COLLOQUY ON REUNIFICATION OF THE PARTHENON MARBLES LONDON 19 – 20 JUNE 2012

Adv George Bizos SC (A member of Johannesburg Bar and The British Committee for the Reunification Of the Parthenon Marbles) 16th Floor, Bram Fischer Towers 20 Albert Street JOHANNESBURG

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A LEGAL AND MORAL ISSUE - WAS A VALID FIRMAN ISSUED?

The Modern Greek state is the successor in title to the territory of Greece that was under control of the Ottoman Empire at the turn of the 19th Century and where the marbles were located prior to their removal by Lord Elgin.  Greece believes that it is legally entitled to the return of the Parthenon Marbles.  Furthermore, it has a clear interest in its cultural heritage, as is reflected in Law 30228 on the Protection of Antiquities and Cultural Heritage in General.  In particular that law makes clear that Greece has a duty, to itself and to its citizens, “to care, within the context of international law, for the protection of cultural objects, which are connected historically with Greece wherever they are located.”  

 

The marbles that are the subject of this memorandum adorned the Parthenon, on the Acropolis.  They were removed between 1801 and 1810 from the sites at which they were located by Lord Elgin, a Scottish Earl who was at the time the British Ambassador to the Ottoman Empire.  The last of the marbles were finally removed from Greek territory in 1810 and were taken by Lord Elgin back to Britain.

In 1816 Lord Elgin sought to sell the marbles to the British government.  The government, which was interested in making the purchase, conducted a parliamentary enquiry into the question whether Elgin had had permission to remove the marbles.  Having satisfied the majority of the members that Elgin indeed had permission, Parliament resolved to purchase the marbles from Elgin.  In 1816, Parliament passed an Act that vested the ownership of the marbles in the British Museum.  The marbles have been housed there ever since.

As will be seen below, it is the opinion of three of us including Richard Moultrie and Adrian Friedman in the Constitutional Litigation Unit of the Legal Resources Centre in Johannesburg that there may well be a case to be made against the current possessors of the marbles for their return.  In our view, the most effective potential cause of action would be based on the principles of private law and would be litigated by means of an action launched in the English Courts, applying the accepted rules of private international law (conflict of laws).  The strongest arguments are those based on a consideration of, and challenge to, the legality of the original acquisition of the marbles by Lord Elgin.

There is a range of possible causes of action for any claim that might be brought by Greece.  Greece could bring a claim based on its possession at the time at which Elgin removed the marbles.  It could also theoretically bring a claim on the basis that it would presently be the owner of the marbles, had they not have been removed.

It is a well-established principle of private international law that the legality of a transfer of property is to be assessed in terms of the law applicable at the time of the transfer.  Because of the 1816 Act that transferred ownership of the marbles from Elgin to the Trustees of the British Museum, it is important to bear this principle in mind.  If one progresses on the assumption that the Greek claim is one of possession, the predecessors in unlawfully dispossessed Greece (or, more precisely, the predecessors in title of the current Greek state) of the marbles, then the claim must be assessed in terms of the law applicable at the time of the dispossession; i.e., between 1801 and 1810.  The 1816 Act then becomes less significant.  In our view, this approach offers the best prospects of success.  The strongest arguments that we have considered concern the question of whether Elgin truly had permission, and was therefore lawfully entitled, to remove the marbles.  If those arguments are to be advanced, it is important to frame the claim as a possessory action, based on the unlawful removal of the marbles from Greece’s possession.  Our recommendations in this memorandum (a fuller version ahs been published “Colloquium: Protection and Return of Cultural Property, Sakkoula Publications, Athens 2001” ) therefore proceed on the assumption that the best prospect of success involves Greece instituting a claim based on its possession prior to Elgin’s removal of the marbles.

This memorandum is based on an approach in terms of which Greece would seek relief from a British court in terms of the law or England.  England is, of course, the jurisdiction in which the property is located and it therefore the appropriate jurisdiction in which to institute an action.  Our prima facie view is that, in terms of the private international law currently applied in England, the court will be required to apply the law applicable in Greece at the time of the dispossession.  This is also a well-accepted principle.  Indeed, in the recent case of Government of the Islamic Republic of Iran v Barakat Galleries Ltd the parties accepted that the dispute had to be determined according to the law of Iran at the time of the removal of antiquities from that country, “being the lex situs of the antiquities at the time of derivation of such title”.  This case is the most recent example of the application of this essentially trite principle.

While we have considered the factual bases for arguments to the effect that Elgin did not have the right to remove the marbles, we have relied exclusively and uncritically upon the work of Rudenstine and Demetriades in relation to the law applicable in Greece at the time of the marbles’ removal.  A full consideration of the legal framework will be necessary before a claim may proceed.  

THE VALIDITY OF THE “FIRMAN” . Those who argue that the removal by Elgin of the marbles was lawful rely on the issuance, by the Ottoman authorities, of a firman that was presented to the authorities in Athens on 23 July 1801.  It is our view that there are a range of arguments that could potentially be raised that contradict the view that Elgin was authorised, through a firman, to remove the marbles. In short, these arguments are:

• That the document on which Elgin relied was not in fact a firman but was simply a letter setting out the recommendation of the writer.  The letter was purportedly signed by Kaimmakam Seyid, Abdullah Pasha, the Deputy to the Grand Vizier or Yusuf Ziyauddin Pasha (then currently in charge of the Ottoman army fighting the French in Egypt), whereas only the Sultan, according to this argument, could give authority for the removal of items from the Parthenon; and

• That the English document commonly relied upon to support Elgin’s claim was in fact a distorted translation of an Italian translation of the original Ottoman document.  On this argument, the document has even less weight when considering whether it did indeed grant the required authority to remove all or any of the marbles.

We proceed to deal with each in turn.  We begin by setting out, briefly, the argument that the “firman” was not in fact a firman.  It must be emphasised that the Ottoman Empire was a theocracy.  There was no legislative body and the law in force was sharia.  The Sultan alone was authorised to interpret the sharia law to the extent that it was inadequately expressed and to issue decrees to the extent that they were not inconsistent with sharia.  This latter power was expressed in the issuance of firmans.

Therefore, if the Sultan had issued a firman to Elgin authorising him to remove the marbles, there would be strong support for the view that the act of removal was legal (subject to arguments discussed below).  However, a case could be made out that the firman allegedly relied upon was not in fact a firman.

According to Demetriades, whose views are supported by Islamic scholars, a valid firman would have had the following features: • It would have contained a “tougras”, which was the emblem of the Sultan.  Only the Sultan could issue a firman. • It would have begun with an “invocatio”, an invocation to God. • It would have been headed with the Sultan’s monogram. • It would have contained an “inscriptio”, which would have mentioned the officials to whom it was addressed. • It would have contained various phrases that were contained only in firmans.  For example, the section containing the specific authority to perform the particular act would begin with the phrase “Upon arrival of the great imperial document, let it be known that …..”. • It would have ended with the date in Arabic set out in full. • It would never have mentioned the name of the drafter or editor because the document was written in the name of the Sultan alone.

The document upon which Elgin relied to establish his authority (in the House of Commons enquiry in 1816) contained none of these features.  Furthermore, it was signed by Seged Abdullah Kaimacan, which would never have occurred in the case of a real firman, for the reasons given above.

As will be discussed in more detail below, the document upon which most modern historians rely in support of their view that Elgin had permission to remove the marbles was an English translation.  The authenticity of the English document is open to serious doubt.  However, even if one accepts that the English translation is an exact translation of the original document issued by the Ottoman authorities, the evidence would tend to support the view that the document was an official letter, rather than a firman.  Its author was a high-ranking official in the army (specifically, the deputy to the Grand Vizier), who was present in Egypt fighting against the French army.  As a result of the defeat by the British of the French, this letter was addressed to Elgin as a sign of gratitude.  It did not, however, have the force of a law that would have applied to a firman.

There is no reason in principle why this could not be achieved during the course of a trial.  The ultimate prospects of success of this argument (or any of the other fact-based arguments) may only be assessed cogently once proper consultation with the relevant expert witnesses has taken place.

The second argument relating to the firman focuses on the translated document upon which Elgin relied in the hearing before Parliament in 1816.  The argument is as follows:

• There are potentially three documents upon which Elgin’s claim to have received permission to remove the marbles is based.  First, there is the original document that Elgin obtained from the Ottomans in Constantinople in 1801.  It was referred to in the report of the parliamentary committee that investigated Elgin’s claims in 1818.  Secondly, there is a document in Italian that was revealed at the 1816 hearings by Philip Hunt, an assistant of Elgin’s who was present with him in Constantinople.  Hunt claimed that this document was a direct translation of the Ottoman firman and that the translation had been done in Constantinople in July 1801.  Thirdly, there is an English translation that was referred to in the 1816 parliamentary report, but which was in fact derived from Hunt’s Italian document.

• The original document is now lost, and was already lost by the time that parliament conducted its enquiry in 1816.  No copy of this document has ever been found and there is no reference to it in the archives of the Ottoman Empire.

• The circumstances surrounding the Italian document are somewhat suspicious.  At the Parliamentary hearings, Elgin testified first.  He was repeatedly asked whether he had written proof of having been given permission to remove the marbles.  He answered that he had been given written permission but that he had not kept any of the documents given to him.  He made no mention at all of an Italian translation of the original document.  Hunt was called as a witness towards the end of the hearings and made reference, for the first time, to the Italian translation.  Despite the clear incentive that Elgin had to fabricate the existence of an authentic translation of the original document (because he desperately needed to sell the marbles and Parliament was eager to be satisfied that he had received permission to remove them), the Committee accepted at face value the authenticity of the Italian document.

• There are arguments against the notion that the Italian document was fraudulently created by Elgin with the co-operation of Hunt: in the first place, it would not have been necessary for the document to have been rendered in Italian.  Secondly, and more importantly, the document does not seem to authorise the removal by Elgin of the marbles (see below).  If one were to devise a fraudulent document in these circumstances, one would expect to devise a document that is water-tight in giving the permission required.

• However, even if one accepts that the Italian document was not fraudulently created by Hunt or Elgin to satisfy the Parliamentary committee, there are discrepancies between the Italian document (which has been rediscovered relatively recently) and the English translation relied upon the Parliament.  These discrepancies undermine the claim that the Italian document is a translation of a firman giving permission to Elgin to remove the marbles.

• If one believes the account provided in the report by the Parliamentary select committee, Hunt was in possession of an Italian translation of the original firman given in 1801.  An English translation of that Italian document is annexed to the parliamentary report and it is upon the latter that those claiming that Elgin had authority to remove the marbles rely.

• In the English translation of the document, there appears the following sentence: “We therefore have written this Letter to you, and expedited it by Mr Philip Hunt, an English Gentleman, Secretary of the Aforesaid Ambassador”.  In the Italian version of the document, this sentence actually reads as follows: “We therefore have written this Letter to you, and expedited it by N.N.”  It seems that the initials N.N. were used when the name of the person in question was to be inserted later.

• The second discrepancy is as follows: In the English translation, it says at the bottom “Signed (with a signet) Seged Abdullah Kaimacan”.  However, the Italian version of the document is not signed, with a signet or at all, by anyone, let alone Seged Abdullah Kaimacan.

• In the light of the above, it is clear that the Italian document could not have been a translation of a firman.  No final document would have contained the initials N.N. in it, because the identity of the deliverer would have been known to the drafter by the time the draft was finalised.  In addition, there is no explanation for translating the firman into Italian since neither Elgin nor Hunt spoke Italian.

• The most plausible explanation of the nature of the document is that it was a document drafted by Pisani, Elgin’s negotiator and translator, which was to be presented to the authorities.  In other words, it was a document that had been drafted by Elgin’s men in the hope that the authorities would approve its content and issue an official letter based on its text.  However, the evidence seems compelling that the Italian document could not have been a translation of a firman and was not even a final version of a letter.

• In short, the Italian version of the document is clearly not a firman and does not seem even to be a final draft of a letter.  The English version of the document is a final draft, but not of a firman.  Although the evidence seems to support the view that it was the Italian document and not the English document that constitutes an authentic translation of the original Ottoman text, on either version there was no firman granting permission to Elgin to remove the marbles.

THE OTTOMANS HAD NO POWER TO GIVE TITLE IN THE MARBLES. There are a range of arguments that might be advanced that relate to the authority of the Ottomans, or the particular officials that ostensibly gave authority, to permit Elgin to remove the marbles.  A brief synopsis of these arguments is as follows: • To the extent that permission was indeed given to Elgin, it was given by officials who did not have the authority to give it.  This argument is similar to the argument advanced above in respect of the firman.  In terms of this argument, to the extent that Elgin was indeed authorised to remove the marbles, he was authorised to do so by persons who lacked the requisite authority.

• A similar argument is to the effect that the Ottomans were bribed into giving permission and therefore the authority given was not lawful.  This argument must be approached with caution.  As argued above, it is well-accepted, both in terms of private and public international law, that the legality of the acquisition of title in property must be assessed by the law of the country in which the property is acquired at the time at which it was acquired.  In terms of that approach, the validity of Elgin’s acquisition of the marbles must be assessed according to the law in force in Greece at the time of the acquisition (i.e. between 1801 and 1810).  Those that argue that the bribery of the Ottoman officials renders the permission that they gave nugatory, rely on the fact that, at the time, bribery was already proscribed by the law of England.  While bribery may well have been the norm at the time in Athens, we cannot imagine that it would have actually been legal.  However, the question would still arise whether proof of bribery could render the otherwise valid firman invalid – not to mention the further question that there is no indication in any of the evidence that we have obtained that the firman itself was obtained by bribery, whereas it is quite clear that bribes were regularly paid to the local Athens officials such as the Disdar and Voivode.

• The last of the arguments in regard to the authority of the Ottomans to give Elgin permission is of broader application.  In terms of this argument, the Ottomans’ military occupation of Greece did not give them authority to alienate the marbles.  Once again, this argument should be approached with caution.  It is based on developments in the law of occupation under public international law that have occurred in the 20th Century.  On the assumption that the legality of the transfer must be assessed at the time at which it took place, it is difficult to argue that modern developments in the law of occupation may be applied retrospectively.

• More than one third of the members of the British Parliament voted against the purchase of the marbles. Might the result have been different if the House had not been misled by Elgin and his agents?

In another important case of Autocephalous Greek Orthodox Church of Cyprus v Goldberg and Feldman Fine Arts Inc the laws of Cyprus, Switzerland and Indiana in the United States were considered.  The case is discussed by Professor Symeon Symeonides, Distinguished Professor of Law; Dean Emeritus Willamette University in “Colloquium: Protection and Return of Cultural Property, Sakkoula Publications, Athens 2001”. Although there may be arguments to the contrary the law of the state of origin of the property should prevail.  The law of Cyprus did prevail even though they were removed from the northern part of Cyprus which is occupied by the Turkish military force. 

However, litigation is not our first option.

The Director of the British Museum persists in describing the Parthenon as a ruin.  For the Greeks and philhellenes, despite the damage done to it by the Venetians, the Ottomans and Lord Elgin it is still a symbol of Athenian Democracy, civilisation and the spirit of Hellenism.  Pericles who declared that “we are lovers of beauty without extravagance” had the Parthenon in mind.  Lord Byron, the most ardent Philhellene, condemned Elgin’s removal of the marbles.

Nadine Gordimer the Nobel Laureate has written in the foreword to Christopher Hitchens’s book “On any criteria of ability, facility to preserve and display their own heritage of great works of art as their importance decrees, Greece has created a claim incontestably unmatched.  The Parthenon Gallery in the New Acropolis Museum provides a sweep of contiguous space for the 106-metre-long Panatheneaic Procession as it never could be seen anywhere else, facing the Parthenon itself high on the Sacred Rock. But there are gaps in their magnificent frieze, left blank. They are there to be filled by an honourable return of the missing parts from the British Museum.  Reverence - and justice - demand this.”

The people of Greece, of the Diaspora and the Philhellenes of the world cannot rest until the Parthenon Marbles are restored to their home.  It would enhance the friendship between the people of Greece and those in the United Kingdom. It would be the right thing to do.