1

Greece as a state was born in 1829 with the London Protocol so it would have to be a nasciturus for it to have ownership (retroactively) between 1801-1812 when the Elgin Marbles were being removed.

If Greece was not a nasciturus then the Ottoman Empire has ownership and they did nothing to get them back.

I do not know what was the international public law and the international property law then. The absence of an international public Law would mean there would be no legal obligation to return the Elgin Marbles. If contemporary law recognises the British Museum's ownership of the Elgin Marbles because they acquired it in good faith, then only by retroactively enforcing a different law could we reach the conclusion that they never acquired ownership because Elgin didn't own the Marbles himself.

Can there be any legal obligation of the British Museum to return the Elgin Marbles to Greece without retroctively applying/enforcing any law?

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Yes, there could be an obligation without needing retroactivity

If Elgin never owned them then neither does the British Museum.

It has been a feature of common law that only a person who has good title to property can pass on that title (unless the goods are a negotiable instrument, such as a banknote cheque or bearer bond acquired in good faith). I don't have any idea what the law on this was in the Ottoman Empire.

Let's just focus on the transfer of ownership to Elgin. If that transfer was invalid then Elgin never owned them and the British Museum could never legally acquire them.

The first legal question is: who owned the marbles before Elgin took them? At the time, the Parthenon was being used as an Ottoman fortress; there is, therefore, no doubt that the Ottoman Empire was in possession of the marbles. That doesn't necessarily mean that the owned them; if they didn't own them they couldn't legally transfer them. Even if they did legally own them, did they have a beneficial interest them or were they acting as trustees of some sort of trust (if there is such a thing in Ottoman law)? If the latter, if the transfer was not in the trustees' interest and Elgin knew this, then the transfer is not valid.

Moving on. There is considerable doubt that the removal of the marbles by Elgin was actually authorized by Ottoman authorities.

First, the only evidence that was ever formally recorded (in 1816) is an alleged English translation or an alleged Italian translation (not in evidence) of an alleged Ottoman firman (also not in evidence). This is called hearsay and all it proves is there is an English document and that Elgin says it is what it is - Elgin is no longer around to be cross-examined so this carries as much weight as a Helium feather.

Further, that document doesn't actually say "We are giving you the marbles":

The document allowed Elgin and his team to erect scaffolding so as to make drawings and mouldings in chalk or gypsum, as well as to measure the remains of the ruined buildings and excavate the foundations which may have become covered in the [ghiaja (meaning gravel, debris)]; and "...that when they wish to take away [qualche (meaning 'some' or 'a few')] pieces of stone with old inscriptions or figures thereon, that no opposition be made thereto".

There is some questions of translation here because “qualche” can in some circumstances mean “all” but we are looking at a translation of a translation of an original that might not have said that anyway.

So, that would be the simple legal position.

However, there are almost insurmountable difficulties in pursuing a legal remedy including issues of limitation periods (if someone has your stuff, you have a limited period in which to make a claim for its return) and standing (Greece, as one of the successor states to the Ottoman Empire, probably has the right to stand in their shoes but not necessarily). The resolution of this issue lies in the realms of diplomacy and politics; not law.

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  • We are being taught in Greece that the English/British( the common law in general) law is more lenient on the tranfer of ownership than the civil law( tradition). In Greece there is a dictum ουδείς μετάγει πλέον ου έχει δικαιώματος. Which translating means Noone tranfers that which he has no rights in. Κτήση κυριότητας από μη κύριο. Acquisition of ownership from a non-owner is in large(with minimal exceptions) forbidden in Greece. We were told that the British Museum could claim ownership( by British Law) as long as the transfer was in good faith(they didn't know Elgin didn't own the Marbles). – George Ntoulos Jan 31 at 0:27
  • My other problem was that unless Greece was considered a nasciturus and retroactively had ownership rights the Ottoman Empire had ownership rights instead. Wouldn't the Ottoman's Empire inactivity give the impession they forsook the ownership of the Marbles and therefore Elgin or the British Museum did in fact acquire ownership because of capture/seize of the now stray Marbles? A prescription or limitation of sorts? – George Ntoulos Jan 31 at 0:35

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