Academic journal article The George Washington International Law Review

Ownership by Display: Adverse Possession to Determine Ownership of Cultural Property

Academic journal article The George Washington International Law Review

Ownership by Display: Adverse Possession to Determine Ownership of Cultural Property

Article excerpt

To rip the Elgin Marbles from the walls of the British Museum is a much greater disaster than the threat of blowing up the Parthenon . . . . I think this is cultural fascism. It's nationalism and it's cultural danger. Enormous cultural danger. If you start to destroy great intellectual institutions, you are culturally fascist.1

[The Elgin Marbles] are the symbol and blood and the son of Greek people. . . . We have fought and died for the Parthenon and the Acropolis . . . . When we are born, they talk to us about all this great history, that makes Greekness . . . . This is the most beautiful, the most impressive, the most monumental building in all Europe and one of the Seven Wonders of the World.2

I. INTRODUCTION

Following his tenure as British Ambassador to the Ottoman Empire, Thomas Bruce, the seventh Earl of Elgin, secured a firman- a royal mandate-from the Ottoman Empire permitting him to remove "any sculptures or inscriptions which do not interfere with the works or walls of the [Parthenon]."3 Construing this mandate broadly,4 Lord Elgin removed significant portions of the frieze, metopes, and pediments of the Parthenon,5 the collection now famous as the Elgin Marbles.6 Great Britain purchased the extracted sculptures and friezes in 1816 from Lord Elgin for £35,000.7 In its debate about whether to make the purchase, the British Parliament questioned the legality of the firman on which Elgin rested his claim to title.8 Although the British Parliament eventually voted to buy the Marbles from Lord Elgin,9 the Parliament's original uncertainty regarding his claim in title strengthens Greece's argument that the firman on which Great Britain heavily relies never conveyed legal title.10

Greece formally requested that the United Kingdom return the Elgin Marbles in the early 1980s.11 The British government officially declined the request in 1984 and has refused to comply with subsequent demands.12 The United Kingdom has advanced several reasons why it should retain the Marbles based on the initial transfer, the present state of the law, and extra-legal concerns, including (1) that the firman conferred a rightful legal title to Lord Elgin,13 (2) that the display of the Marbles in London will spread information of classical studies,14 and (3) that the Marbles are safer in the United Kingdom than they would be in Greece.15 Questions surrounding the legality of Lord Elgin's firman aside, if Greece continues to pursue its claim for ownership of the Marbles, the United Kingdom should be allowed to assert a defense based on its open and adverse possession16 of the Marbles for almost two centuries. While this dispute persists, the Marbles are still on display in the British Museum.17

This Note explores the international goals of the International Institute for the Unification of Private Law (UNIDROIT) Convention On the International Return of Stolen or Illegally Exported Cultural Objects (UNIDROIT Convention) as well as the legal elements a state would need to prove to establish a claim of adverse possession in a situation involving cultural property removed from one state to another.18 Using the Elgin Marbles as a case study, this Note argues that permitting a defense of adverse possession, as opposed to a defense based solely upon the tolling of the statute of limitations, would provide sufficient legal remedy for both states involved in the dispute. The UNIDROIT Convention sets a statutory limit of fifty years for most claims seeking the return of cultural property that has been removed since 1995.19 This Note argues that when a museum has displayed cultural property and made the property accessible to the public at large, the museum should be permitted to raise a defense of adverse possession. Since this argument would, by definition, apply retroactively only to appropriated cultural property prior to 1995, museums and governmental institutions should be held to a heightened standard where they have to show both that they displayed the work openly and adversely and that it was publicly accessible. …

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