Defining Cultural Property:
There is no agreed and settled definition of what cultural property is. Any definitions that do exist tend to be rather broad and all-encompassing.
Both movable and immovable property can be culturally significant property.
Examples:
Parthenon Marbles
Benin Bronzes
Seyso Silver
Fine Art
Stonehenge
Great Site of Teotihuacán (Pyramid of the Sun)
Egyptian Pyramids
Canterbury Cathedral
Listed Buildings (EG: 32 Lincoln’s Inn Fields)
Protection of Cultural Property:
Export Bans:
Sometimes export bans can be imposed to prevent culturally significant property from leaving the UK, even when the object is not originally from the UK. This is generally when the objects are of great importance to the public.
Restrictions:
Australia discourages the unauthorised use of aboriginal art in commercial settings. [1]
Preservation efforts have been made in relation to plant life and biodiversity. Australia have denoted a number of flora and fauna as ‘weeds of national significance’.
Listed Status:
Many buildings within the UK are given a listed building status to prevent their demolition and ensure they are restored to their historical appearance.
UNESCO:
UNESCO’s World Heritage List comprises of sites and objects around the world that are of cultural significance. There are calls for endangered species to be listed too.
UNESCO holds a watching and reporting brief to monitor the condition of heritage sites. Status can be stripped if the site is not properly maintained. [2]
Fake Titles and Illegal Trade:
If a ‘good legal title’ to property has not been passed on, then it cannot be traded to others. Illicit trade and trafficking create a problem whereby the culturally significant goods are given fake titles to make them sellable.
1970 Convention [3]:
The convention creates provisions for preventative measures, including import and export restrictions, expanded restitution provisions and international cooperation.
This was implemented into domestic law under the Dealing in Cultural Objects (Offences) Act 2003.
Patrimonial Law:
In most countries, objects found within their borders automatically belong to the state. [4]
Repatriation:
Objects are to be returned to their places of origin wherever possible.
Hague Convention [5]:
The convention creates provisions for the protection of an object or site during peacetime and wartime. Once hostilities end, the objects are to be repatriated and resituated.
‘Military necessity’ may be used to justifying the destruction of buildings that are otherwise protected.
This was implemented into domestic law under the Cultural Property (Armed Conflicts) Act 2017.
Examples of Ownership Issues of Cultural Property:
Titian’s Diana and Callisto:
The painting had been owned by the Duke of Sutherland for many years. He lent it to the National Gallery for public display there. When he tried to sell it, there was concern that it would be sold abroad, thus depriving the country from being able to display it in the National Gallery. A campaign raised money to privately buy the painting and save it for the nation. [6]
Wartime:
Many Jewish families were forced to sell on their precious artefacts to raise money to flee Nazi rule during WW2. Since the titles to their property was transferred under duress, English contract law would not consider these sales to be acceptable. [7]
The ‘Monuments Men’ worked to safeguard key works of art during WW2 and repatriate the looted art after the war. Additionally, many works of art were moved out of London during WW1 and WW2 for their protection.
There were certain agreements between opposing forces that certain historically significant places would not be destroyed.
Mona Lisa:
Displayed in the Louvre, the famous painting was acquired legally and is now seen as French property. It is not allowed out of France without governmental approval.
Human Skeletons:
Archaeologists often took human skeletons and other associated items from burial grounds during the 18th and 19th centuries. The Smithsonian Museum used to have a ‘bone room’. Many have since been returned to their original resting place.
Sevso Silvers:
The treasure has been previously estimated at £100m, but it is probably worth even more. Due to their troubled history and status as archaeological loot, fraudulent documents were made so that it could be sold.
When the owner, who had acquired the Silvers under fake title, tried to sell them, the goods were impounded until it could be proved who the legal owner was. As no other country was able to prove they had a legitimate claim to the title, the owner was deemed to have the legal title.
Parthenon / Elgin Marbles:
The marbles were made more than 2000 years ago and were originally from Greece. In the 19th century, the British purchased the marbles from the Ottoman empire, who were occupying Greece at the time. They are on display at the British Museum.
At the time the marbles were taken, the Parthenon was a ruin. Lord Engin sought to preserve the marbles. However, they were severely damaged while they were removed and in transit to England, perhaps undermining this preservation argument.
The terms and legality of the ‘firman’ that granted permission to Lord Elgin to take the marbles is questionable at best. The original was lost and only translations have survived.
There is debate as to whether they should be repatriated back to Greece. [8] This is one of the oldest and most contested property disputes in the world.
The British Museum argues they were purchased by the British Government in 1816 and that it acquired the legal title to the marbles. Therefore, the British Museum should be the one to decide what to do next.
Timetable:
1933: First request for repatriation after Greek Independence in 1921.
1985: Melina Mercouri’s Speech in the Oxford Union (of which Boris Johnson was the President of).
2016: Parthenon Sculptures (Return to Greece) Bill introduced. [9]
2016: Claim made to ECHR by Greece. [10] Could not be dealt with in ECHR as the events long preceded the convention.
2018: Jeremy Corbyn pledged to return the marbles.
2022: Piece of the marbles were returned by Sicily. Other pieces remain in the Vatican, Würzburg, Vienna, Munich and Copenhagen.
Law and Politics:
Legal vs Moral / Historical Ownership:
While an object might be held under a legal title, that does not mean that they are the moral or historical owner. For example, the Parthenon marbles are legally owned by the British Museum. However, it is contested whether they should be returned to Greece because they are the historical owners.
Idea of ‘Patria’:
The nation state of modern Greece is radically different from Ancient Greece when the Parthenon marbles were constructed. It should be questioned whether mere geography can give sufficient right to a cultural property claim.
As the marbles have been in the hands of the British for so long, there is a strong argument that they have become part of our culture.
Resources:
References:
[1] See https://indigenousartcode.org/ [2] See https://www.theguardian.com/uk-news/2021/jul/21/unesco-strips-liverpool-waterfront-world-heritage-status [3] Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property [4] See https://www.theguardian.com/science/2020/dec/04/definition-of-treasure-trove-to-be-recast-to-protect-uks-rare-artefacts; Treasure Act 1996 [5] Convention for the Protection of Cultural Property in the Even of Armed Conflict 1954; Protocols of 1954 and 1999 [6] See https://www.bbc.co.uk/news/entertainment-arts-17220446 [7] Also note: Holocaust (Return of Cultural Objects) Act 2009 [8] See https://www.theguardian.com/artanddesign/2022/jan/18/parthenon-sculptures-greece-pressure-british-museum; Kyriakos Mitsotakis, The Observer (August 2019) [9] See https://services.parliament.uk/Bills/2016-17/parthenonsculpturesreturntogreece.html [10] Syllogos Ton Athinaion v United Kingdom [2016]
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