The long-running dispute over the rightful home of the Elgin Marbles looks likely to end in a bitter court battle and a family row between the descendants of the Scottish earl who first removed the ancient stones from Athens more than 200 years ago.
The British Government is named as a defendant in a court case being prepared by a group of Greek shipping tycoons advised by Bruce Tattersall, a barrister and distant relative of the 7th Earl of Elgin.
Mr Tattersall claims that the earl, cousin to his great, great grandmother, illegally acquired the 2,500-year-old marbles when he took them from the Acropolis and arranged for them to be sent to England in 1801.
The lawsuit, which is also being supported by the former judge and Bloody Sunday inquiry barrister, Sir Louis Blom-Cooper QC, is based on the civil law of theft also known as "conversion".
But the current 11th Earl of Elgin dismissed any question of illegality yesterday. "Nobody has said thank you for the incredible mission that he [Thomas Bruce, the 7th Earl of Elgin] undertook, which saved the artefacts from destruction.
"The Turkish authorities gave him leave to take them."
In a draft writ to be lodged at Marylebone County Court, lawyers for the Parthenon Marbles Trust argue that "legal title" was never passed to Lord Elgin or the British Museum under Greek, Ottoman or English law.
see Daylight Robbery, Law, Review, page 14
For decades, attempts to get the Elgin marbles returned to Greece have failed. Now a legal challenge hopes to break the stalemate. JON ROBBINS reports
"The Greek government has been trying to do this through diplomatic channels now for 40 years, and they have got nowhere," says David Charity, a shipping lawyer based in London, who is behind the latest initiative, the Parthenon Marbles Trust, to send the sculptures back to their home.
Charity has joined forces with the well-known Greek businessman, George Lemos, who is backed by a number of wealthy shipping bosses. Louis Blom-Cooper QC, Dominic Dowley of Serle Court and Bruce Tattersall, an art historian-turned-barrister, are advising the trust. It is Mr Tattersall who is a relative of Thomas Bruce, the seventh Earl of Elgin; he also takes his Christian name from the (alleged) art thief.
Could the lawyers succeed where decades of quiet diplomacy have so far failed? Well, actually, no. At least, that is the unambiguous view of one veteran campaigner, who is deeply unhappy at the prospect of a bunch of lawyers derailing years of patient persuasion. A legal action "just wouldn't work" anyhow, declares Eleni Cubitt, the campaign manager of the British Committee for the Restitution of the Parthenon Marbles.
"I don't think a legal battle will be resolved for 10 or 20 years," Cubitt argues. "The British have enormous difficulty in admitting that they should never have removed them and what they did was not legally and morally right."
It is not for the lack of a strong legal case. Cubitt believes that the British Museum, where the marbles have been on display since 1816, have never been able to prove that the taking of the sculptures was lawful. But their fight is a moral one and not a legal one.
Nonetheless, David Charity sees the taking of the sculptures as "a simple claim for conversion". Of course, there is nothing simple about this timeworn story. Its central character is cast either as cultural pillager or, as the British Museum recently put it, "an unjustly defamed" lover of the arts, depending on your point of view.
Elgin was British ambassador to the Ottoman Empire in 1799, when Greece was one of its colonies. He was given permission to sketch and excavate sites, including the Parthenon, where his men began removing as many sculptures as they could. It was Elgin's claim that he had official sanction to do this, but only an Italian translation – which is known as the firman – exists of that alleged agreement. The alternative version of events is that he bullied and bribed the officials. He was forced to hand over the sculptures in order to settle a debt to the Government, which, in turn, vested the marbles to the British Museum through the Elgin Collection Act of 1816.
"Any law student knows the Latin tag, 'Nemo dat quod non habet' means that you cannot transfer legal title to something that you don't own," argues David Charity. "Title to the sculptures remains where it has been for two-and-a-half thousand years – that's to say, with the Greek people."
"You could make an argument that all the elements of theft exist but it was all so long ago and before the Greek state existed," comments Geoffrey White, a barrister on the committee for the restitution of the marbles. "The legality is not conceded, but it's not central to our argument."
|Above: Bruce Tattersall, a descendant of Lord Elgin, is backing the latest initiative to return the Elgin marbles, pictured top left, to Greece|
Even under conventional English law, the marbles are "fixture and not fittings", Tattersall argues, and consequently form part of the building. "If you turned the Parthenon upside down with the sculptures on it they wouldn't drop off."
Just to muddy the waters further, there is little consensus in legal academic circles over the legality of the British Museum's ownership. John Henry Merryman, a law professor at Stanford University in California who specialises in art law, is an expert on the history of the Elgin marbles. He started his research believing that Brits were guilty as charged of cultural imperialism, but discovered with "growing horror" that this was not the case. In fact, he points to historical proof that the Constantinople government subsequently ratified what Elgin had done on two separate occasions.
"So they were legally acquired by Elgin and he could then transfer title to the British government," the professor argues. He believes it to be "rather strange" that the British Museum is sticking to the more dubious line that it is the 1816 Act that confers ownership.
Nonetheless, the prospect of a legal challenge is big news in Greece. The leading daily Kathimerini recently ran a wildly enthusiastic comment piece, singling out the efforts of David Charity for praise.
However, Theo Sioufas, the Greek lawyer assisting the legal challenge in Athens, acknowledges that the politicians are set on diplomacy at the moment. It is a problem for any Anglo-Greek action, as they need the government in Athens onside. According to Sioufas, churches and mosques have their own legal personality and can bring an action in their own name. "Whether this can be done is a matter that requires the prior decision of the Greek government because someone has to represent the temple," he argues. "For the time being, I can't see the government moving from the position it has adopted."
But the biggest hurdle is that the critical event took place more than 200 years ago. Charity reckons they can get around the six-year time bar because of the comments of Robert Anderson, director of the British Museum, earlier in the year. In an article for The Times, he asserted that the museum's legal ownership was "unassailable". It was this claim that provoked the ire of George Lemos and his wealthy colleagues.
"We're going to sue for 'iactitation' of title," Charity declares. He goes on to explain that this obscure and medieval tort (which comes from the Latin word meaning "I boast") covers dealing with goods in a manner inconsistent with the rights of the true owner, and that would include Anderson's assertion.
The restitution committee has been exploring the legal issues for years and thought they had heard everything. But, apparently, not "iactitation". "It's always exciting to have obscure corners of the law illuminated," notes an unconvinced Geoff White. "But I am not holding my breath."