law and the politics of the past

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Law and the Politics of the Past:Legal Protection of Cultural Heritagein Greece

Daphne Voudouri*

Abstract: This article examines the main lines of Greek legislation onantiquities and on cultural heritage in general, in the course of its history, withan emphasis on the innovations and continuity of the current Law 3028 of 2002. It attempts to place the Greek case in the context of the relevantinternational experience and the broader debate about ownership of the past. Itthrows light on the relationship between the legal framework of antiquities andthe formation and fostering of national identity in Greece, and on their closeconnection with the state, while at the same time criticizing the view that

opposes a cultural internationalist approach to heritage to the culturalnationalism of Greece and other source countries.

The material remains of ancient Greece played a crucial role in shaping nationalconsciousness and legitimizing the modern Greek state, established in 1830, inconjunction with the high esteem in which they were already held in Europe, no-tably in the eighteenth and early nineteenth centuries, and the growing demandfor them among foreign travelers. For the new state, ancient monuments were the

obvious, the sole ready-made national symbols which it could use, as has beenobserved 1 and is shown by the well-known words of the first president of theAthens Archaeological Society and Secretary of State for Public Education, on theAcropolis in 1838: It is to these stones . . . that we owe to a large extent our po-litical renaissance. 2 Thus, during the building of the Greek nation-state, a pio-neering and strict national legislation on antiquities was adopted. Its basic principlesstill permeate their status today, a status that remains privileged, while legal pro-tection has been progressively broadened to cover other cultural legacies.

This article examines the main lines of Greek legislation on antiquities and oncultural heritage in general, in the course of its history, with an emphasis on the

*Panteion University Athens, Greece. Email: [email protected]

International Journal of Cultural Property (2010) 17:547568. Printed in the USA.Copyright 2010 International Cultural Property Society doi:10.1017/S094073911000024X

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innovations and continuity of the current Law 3028 of 2002. 3 It attempts to placethe Greek case in the context of the relevant international experience and thebroader debate about ownership of the past. It tries to shed light on the relation-ship between the legal framework of antiquities and the formation and fosteringof national identity in Greece, and on their close connection with the state. But atthe same time, it argues that it would be oversimplifying the case to regard Greek legislation as an instrument in the nationalistic use of antiquities by the state andmore generally to oppose a nationalist (bad) to an internationalist (good) ap-proach to cultural heritage.

1. HISTORICAL OUTLINE

1.1. Protective Measures During the Greek War of Independence

Concern for the protection of antiquities, as a fundamental element of nationalconsciousness, had been expressed even before the foundation of the Greek state, 4

during the War of Independence against Ottoman rule (18211830), by the vari-ous revolutionary executive and legislative bodies. By way of illustration, a decreewas issued in 1825 by the minister of the interior of the revolutionary govern-

ment, regarding the collecting and safeguarding of antiquities in schools, and thefollowing year the Provisional Administration laid down measures to preserve themonuments of Athens. 5

Most importantly, in 1827 a resolution of the National Assembly of Troezenintroduced a prohibition on the sale and export of antiquities. 6 This special con-cern was also deeply felt by many of the freedom fighters, as shown by the oftencited words of General Makriyannis to soldiers who were preparing to sell twoancient statues to Europeans: Even if they were to give you ten thousand thalers,do not agree to these leaving our homeland. It was these that we have fought for. 7

At the National Assembly of Argos in 1829, the ban on export was confirmed,though at the same time relaxed, in order to make it possible to cede fragments of antiquities to academic establishments of foreign governments. This amendmentwas adopted on the proposal of Governor Kapodistrias (18281831), followingpressure from the French, who had asked for finds from the excavations of theExpdition Scientifique de More at Olympia. 8 The difficult diplomatic position of the fledgling state was already apparent: On the one hand, it claimed exclusiverights over antiquities; on the other hand, it sought to avoid displeasing the GreatPowers, on whom it was dependent.

In order to deter their exportation and to safeguard antiquities within Greece,

the National Museum was founded in 1829 in Aegina by Kapodistrias.9

In a cir-cular of the same period concerning the protection of antiquities and the enrich-

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ment of the museum, the special symbolic value that antiquities held for modernGreeks was graphically expressed:

These stir the spirit of the modern Hellenes to imitate and call to mind

the brilliance and glory of their ancestors. They bring great honour tothe nation. Honoured by wise Europe and sought after day by day by travellers, they make manifest their value, and it is as if they were sayingto the Hellenes: You must not undervalue the relics of your ancestors!They have assisted you and it is your duty to respect them, because they are sacred and are your possessions and are part of your dignity andhonour. 10

1.2. Antiquities Legislation of the Nineteenth Century

In 1834, at the time of the Regency (18331835), and under the influence of Bavar-ian neoclassicism, the first comprehensive national legislation on antiquities wasintroduced, which was pioneering for its time. 11 The author of the law, GeorgLudwig von Maurer, stressed the enormous political importance of ancient mon-uments for the Greek kingdom, because he considered that Greek antiquity hadbeen and should continue to be the link between modern Greece and Europe. 12

According to article 61 of the law, all antiquities within Greece, as works of theancestors of the Hellenic people, shall be regarded as national property of all Hel-lenes in general. In the spirit of earlier documents, 13 this resounding declaration ex-

pressed the idea of cultural heritage, even if the term had yet to be introduced.The following articles recognized nevertheless a right of ownership of antiqui-ties by individuals under certain conditions. Private ownership was recognized inthe case of antiquities which at the time were already held in private collections,while in the case of those discovered on or beneath private land after the cominginto force of the law, a division of the finds between landowners and the state wasestablished. The full and absolute ownership of the state was recognized in thecase of antiquities found on publicly owned land or beneath it; at the bottom of the sea; or in rivers or public streams, lakes, or marshes.

The law also introduced a set of measures for the protection of antiquities thatwere inspired by legislation passed by the Papal State of Rome in 1820. 14 They included, in particular, an obligation to declare a find and to notify a sale; a rightof preemption of the state in the purchase of antiquities; a prohibition on exca-vation or export without a permit and sanctions for its violation; and sanctionsagainst destruction of, damage to, or theft of antiquities.

The law of 1834 also systematically regulated matters concerning the State Ar-chaeological Service, which had been established in the preceding year, 15 as wellas the museums that the state planned to set up and should be open to thepublic.

Special mention should be made of the Convention of 1874 between Greeceand Germany on the excavations at Olympia. This convention is considered to be

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the first international regulation of long-term scientific excavation of a major site,serving as a model of many excavation agreements 16 and establishing a new formof cultural diplomacy. 17 It is also the earliest convention recognizing state prop-erty in archaeological finds, 18 given its provision for ownership of Greece over thefinds, with the possibility of the ceding, at the discretion of the Greek govern-ment, duplicates or replicas to Germany. 19 Nevertheless, this clause on the cedingof duplicates provoked strong reactions in Greece and was not included in theGreek-French agreement of 1887 on the excavations at Delphi 20 or in other sim-ilar instruments.

The 1834 law, laying the foundations for Greek legislation on antiquities, wasreplaced in 1899 by the stricter Law 2646. 21 Its main innovation was the estab-lishment of an exclusive right of ownership of the state over all antiquities, mov-able and immovable, found anywhere in Greece, even on private land. This rule

and other provisions of the 1899 law were incorporated, together with later leg-islative provisionsconcerning, inter alia, possession of movable antiquities by individuals, private collectors of and dealers in antiquitiesinto Codified Law 5351 /1932, which served as the basic text for the relevant Greek legislation until 2002. 22

Although in todays world the vesting of ownership of antiquities in the state is tobe found not only in the legislation of Greece but also of many other archaeolog-ically rich countries, commonly referred to as source countries, it seems that in1899 it had not yet been introduced into other national legislations, at least clearly enough. 23

The replacement of the 1834 law was based on the consideration that while inforce there had been a general increase in illicit dealing in antiquities ( arhaiokapilia ),which was castigated as a sacrilege and as a worm gnawing at our national hon-our, in the terms of a circular on the implementation of the 1899 law, while thosewho destroyed, or illegally sold or exported antiquities ( arhaiokapiloi ) should beregarded from now on as the greatest enemies of our homeland. 24 This circularbegan as follows:

We Hellenes owe our independence to a large extent to the glorious nameand the immortal monuments of art which we have inherited from our

ancient ancestors. And just as we have a duty to make every effort at alltimes to show ourselves worthy of the name which we bear, so in thesame way there is a sacred duty incumbent upon us all to regard as sa-cred heirlooms and to safeguard the antiquities if we wish to prove tothe civilized world that it was justly that we became an independent Stateand that justly are we called Hellenes.

Thus, through the appropriation of the ideological position of European supe-riority that harked back to an idealized Greek antiquity, 25 the protection of theancestral works was employed to assert in the eyes of Europe (which was heldup as an incontestable model, but also as a constant observer) national indepen-

dence, the national name, and the inclusion of the Greek state in the Europeanmodernity. At the same time, it is apparent that the archaeological heritage had a

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double dimension: It was perceived not only as an advantage and source of pridebut also as a burden for the new Hellas, given that the safeguard and even the loveof antiquities was pointed out, in the same text, as a national duty.

Nevertheless, the state authorities did not overlook the economic importanceof antiquities, which will turn Greece into an object of pilgrimage for all the civ-ilised peoples and will in this way prove not only objects of honour and venera-tion, but also a source of wealth for our country, as foreseen in the above circular. 26

1.3. The Field of Protection and Its Extension During theTwentieth Century

The law passed in 1834 under the Regency also provided for the inclusion of ob-

jects of art dating from the most ancient period of Christianity or the so-calledMiddle Ages in its field of application.27 Moreover, a decree of King Otto (18331862) of 1837 required the preservation of the medieval relics of Athens, whichwere further defined as Byzantine, Venetian and Turkish, even if they are inter-mingled with Greek or Roman antiquities. Their preservation was demanded be-cause they increase the curiosities of the capital, a consideration that expressed aromantic taste for the picturesque. 28

In practice, however, in spite of these provisions, protection during the nine-teenth century was limited to the monuments of antiquity, with emphasis on those

of the classical age. Monuments of a later date were not only neglected but oftendestroyed in the interests of purifying the material evidence of the ancient Greek past and the restoration of their authentic form. The object of the largest oper-ation of so-called clearing of the postclassical remains, which also illustrates themutual dependence of preservation and destruction, was the Athenian Acropolis.In this strategy, a key figure in the early years was the neoclassicist architect Leovon Klenze, who planned to remove all the remnants of barbarism in his resto-ration of the Acropolis project officially inaugurated in 1834. 29 He was, however,in favor of preserving certain picturesque medieval structures, such as the Frank-ish tower in the Propylaia. In a more inclusive approach to barbarism, this towerwas demolished in 1875 by the Athens Archaeological Society, which played a lead-ing role in the clearing operation and, more generally, a decisive role in discover-ing and protecting antiquities during the nineteenth century. 30

In the same spirit, the museums set up by the end of the century were exclu-sively archaeological, the provisions of the 1834 law on the establishment of pub-lic museums with a different content (including collections of pictures and copperengravings) having not been implemented. 31

State concern for the protection of Byzantine monuments, which also corre-sponded to the more general reevaluation of the Middle Ages by romanticism,

manifested itself in practice only around the end of the nineteenth century. In1899, the law included within the field of application of the antiquities legislation



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objects of medieval Hellenism, a term that suggests the adoption of the tripar-tite scheme of Konstantinos Paparrigopouloss History of the Hellenic Nation.32 Con-sequently, objects from the Byzantine period dating up to the Fall of Constantinoplein 1453 came within the definition of antiquities belonging to the state. 33

This legal provision reflected and reinforced the new version of national iden-tity, which stressed a rehabilitated and Hellenized Byzantium as an intermediary link in the unbroken continuity of Hellenism from antiquity down to the present,with a view to dealing with new national needs and ambitions. This synthesis of the Hellenic and the Christian (Orthodox) elements, which focused on the incor-poration of the Byzantine period into the national narrative, facilitated the incor-poration of the other historical periods and could be seen as a revolt against animage of the national self that had been imposed by Europe. 34

In 1914, the first Byzantine museum was established, and 1918 saw the creation

of the first folklore museum, both set up as state museums.35

The latters creationcan be seen within the same context as evidence of the continuity of Greek na-tional life from antiquity to modern times, given that folklore studies at their in-ception focused on the quest for monuments of Greek antiquity living on in theGreek people of the present day. 36

The 1914 law setting up the Byzantine and Christian Museum also introducedmeasures of protection for Byzantine, Christian, and medieval works of art andof historical value dating up to 1830, the year marking the foundation of theGreek state. In addition, in 1920 a provision was introduced for the protection

of churches and other artistic and historic monuments and buildings older than1830.37

The extension of the field of legal protection beyond antiquities correspondedalso with the need to integrate the new populations that were incorporated intothe Greek state following the Balkan Wars (19121913) and the Asia Minor Ca-tastrophe (1922). 38

Cultural properties dating from after 1830, referred to as modern or recent ones,became the object of legislative protection only in 1950, with Law 1469. 39 This law provided for the protection of objects belonging to the following categories, undercondition of their classification by an administrative act:

Sites of particular natural beauty Buildings or monuments considered as works of artdeserving specialprotection Paintings, sculptures, architectural works, and prominent works of handicraft

or notable popular art deserving special protection Historic buildings and historical sites

As can be seen from the terminology used, this law expressed an aesthetic view of the objects worthy of protection. It did not cover the whole range of materials

with a cultural interest, such as industrial remains or movable objects on the groundof their historical value.

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2. THE NEW CULTURAL HERITAGE LAW OF 2002

2.1. Broadening the Scope of the Protection

Law 3028 of 2002 On the protection of antiquities and cultural heritage in gen-eral takes into account contemporary approaches and needs, the mandate of theGreek Constitution for the protection of the culturaland naturalenvironmentin the context of sustainability, 40 and the relevant international legal instru-ments. 41 It therefore offers a broad definition of the cultural objects to which itapplies, as witness to human existence and creativity. It adopts a territorial crite-rion for their linkage with the countrys cultural heritage, thus including in itsfield of application the remains of the differing civilizations that flourished, met,

or even fought against each other within the Greek territory. It extends further itsscope to include manifestations of the intangible heritage, for which it introducesa special protective status. 42

Its main innovation is the establishment of a global and coherent legal regimethat applies to all kinds of elements of the countrys cultural heritage.

Ancient and other protected (tangible) cultural objects or monuments, to usethe terminology employed ( mnimeia , term referring to memory), 43 are now treatedin the same spirit, thereby transcending a narrowly archaeocentric approach. Nev-ertheless, their basic typology and the extent of their protection are still deter-

mined on the basis of chronological criteria which, moreover, employ the samelandmarks of Greek history, so rich in symbolism, of the years 1453 and 1830. Inthis respect, the new law did not break away from the national framework estab-lished in the nineteenth century. 44 The definition of antiquities has now been ex-tended to cover cultural objects dating from prehistoric times to 1830, 45 but theprotection of those dating up to 1453 remains augmented. On the one hand, allthese objects are, without exception, automatically protected, being characterizedas ancient monuments, or antiquities, directly by the law. More specifically, in-cluded directly within the protection of the law are all immovable cultural objectsthat date from up to 1830, all movables that date from up to 1453, and movablesof the period 14541830 that are finds from excavations or other archaeologicalresearch or have been detached from immovable monuments, or consist of reli-gious icons or liturgical objects. The other cultural objects need to have been clas-sified as monuments, because of their significance (of their particular significance,in the case of objects lees than hundred years old), by a relevant administrativeact.46 On the other hand, the principle of state ownership of antiquities dating upto 1453 is reiterated 47 and determines their status of protection.

The 2002 law also goes beyond the narrowly aesthetic approach that imbuedthe status of modern monuments under the 1950 law, since their classification by

an administrative act may now take place on the grounds of their architectural;urban; social; ethnological; folk; technical; industrial; or generally historical, artis-



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tic or scientific significance. However, a parallel law on modern architectural her-itage remains in force (article 4 of the General Construction Regulation, concerningclassified buildings and traditional ensembles48 ), so a certain confusion of com-petences between the relevant administrative authorities persists.

The legal provisions just mentioned concern, of course, the objects that could becharacterized as monuments worthy of protection and can be seen in the context of a more general tendency toward patrimonialization of virtually anything that is de-veloping in Western societies in our age. However, which of these objects are se-lected and effectively protected constitutesinevitablya choice with ideologicaland political dimensions that deserves further examination. It is worth investigat-ing, through the study of the archives of the competent public administration, forinstance, to what extent Ottoman remains or medieval relics other than Byzantinemonuments (Venetian, Frankish, etc.) are actively protected or what proportion of

the classified buildings in Greece are neoclassical.A recent case illustrating the problems surrounding the choice between the

ancientnotably classicaland the modern heritage, and somehow reminis-cent of the purification practices of the nineteenth century, concerns the projectof the demolition of two classified buildings on Dionysiou Areopagitou Streetacross from the Acropolis. The primary justification for the demolition of these buildings, dating from the first decades of the twentieth century, was toimprove the visual contact between the new Acropolis Museum and theSacred Rock. The reasons invoked were, however, judged to be insufficient by

the Council of State, who annulled in July 2009 the decision of the minister of culture ordering the demolition, which was based on a provision of Law 3028for the possibility to waive the protection of one monument in order to protectanother and had provoked many reactions. 49 In addition, in January 2010 thenew head of the Ministry of Culture decided to stop the demolition of two otherneoclassical buildings behind the Acropolis Museum, which had not beenclassified.50

Besides monuments, Law 3028 also protects archaeological and historical sites,although a special regime for groups of buildings was not finally introduced. 51 Ascan be seen in many of its provisions, the law highlights the relation of culturalobjects to their context, which enables them to effectively play their role as evi-dence of the past. 52 It also puts an emphasis on the provenance of antiquities, inthe interests of restricting their illicit traffic. 53

The new law broadens not only the object but also the content of the protec-tion, mainly by giving emphasis to the social function of heritage, the preserva-tion of which is not understood as an end in itself. 54 The notion of protectionincludes, among others, the inventory, documentation and study of the protectedelements, their accessibility to the public and scholars, their enhancement and in-tegration into contemporary social life, and public awareness of them. The law

also refers to their integration into the planning processes, taking into account theprinciple of integrated conservation, although one issue that remains is the extent

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of the effective coordination between laws and public policies that may have animpact on heritage.

2.2. The State-Centric Character of the Protection Persists

According to article 24, para. 1 of the Constitution, the protection of culturalenvironment is an obligation of the state andas added in 2001a right of everyone. Nevertheless, and despite the steps forward that have been made, theinvolvement of individuals and communities in defining and managing heritageis not a simple issue,55 and heritage protection remains fundamentally state-centric.

The state has a key role in producing cultural heritage, by designating whichcultural objects are worthy of protection, not only through the normative actionbut also through the classification process. Under Law 3028, classification takes

place by decision of the minister of culture, following an opinion of a council thatincludes officials of the ministry and academics or other experts assigned almostexclusively by the minister. 56 Even the protection of intangible heritage falls underthe remit of the Ministry of Culture.

The 2002 law undertakes to improve the relations between citizens and the ad-ministration for its implementation, currently called the State Archaeological Ser-vice, which is often perceived as a source of trouble and delay. To this end, it limitsthe margin of the administrations discretionary power by defining more specifi-cally the conditions for granting or refusing the different permits required. 57 It

lays down time limits for the administrations actions, procedures of notification,and the right of interested persons to a hearing and provides, among other things,for compensation and rewards. It also establishes tax and other financial incen-tives, rather limited though, so that the protection remains based mostly oncoercion. 58

The administration of heritage and in particular of antiquities remains central-ized. The local Ephorates of Antiquities are services of the state, and more specif-ically of the Ministry of Culture, while local authorities are only marginally involved.

The connection between state and cultural heritage is tighter in the case of an-tiquities, and especially those dating up to 1453, which in principle belong to thestate and are extra commercium, as well as those discovered during excavations. 59

The closealthough no more exclusive 60 association of antiquities with the statealso shapes the legal status of museums. Archaeological museums in Greece, in-cluding Byzantine museums, are state-owned, with very few exceptions. 61 More-over, they are in principle incorporated into the legal person of the state and, intheir large majority, form part of the local Ephorates of Antiquities. 62 In contrast,the overwhelming majority of the museums of other kinds belong to local gov-ernment bodies or other public entities or to private nonprofit organizations, whilethose few that are state-run have in principle their own legal personality.

It is also worth pointing out that any, even tentative, moves on the part of thelegislator toward any slackening of the tight embrace of antiquities by the state



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have met with and still meet with strong reactions, coming mainly though notexclusively from the archaeologists of the State Archaeological Service. By way of illustration, the attempts to implement the provisions of Codified Law 5351 of 1932, allowing the sale of antiquities deemed to be redundant to the states mu-seums and smaller collections, faced intense resistance and have remained a deadletter. And it could be noted that no such possibility for disposal by sale or gift isprovided for in the current law. Law 654 of 1977, which provided for the tempo-rary export of antiquities for exhibitions in museums abroad, also attracted sharpcriticism. Its implementation drew many protests, including mass demonstra-tions, particularly at an early phase, in which, on the other hand, the sending abroadof antiquities was used chiefly to promote the so-called national issues, such asthe Aegean or Macedonia. Law 3028 of 2002 retains the prohibition of export of monuments without a permit, while allowing, under certain conditions, the lend-

ing of up to five years (subject to renewal) and the exchange of antiquities be-longing to and possessed by the state. It is, however, instructive that this provisionis the one that met with the most objections to the bill for the new law. 63

There has also been reaction to the setting up of the new Acropolis Museum asa public law legal entity in 2008,64 as in 2005 against a governmental project of transforming a number of archaeological museums into separate legal entities. Inthe same spirit, there was opposition in 1997 to the transformation of major ar-chaeological museums into special services of the ministry, separated from thelocal Ephorates, as well as to the establishment of a public enterprise in the form

of a joint stock company for the promotion of Greek cultural heritage, on argu-ments opposing its commercialization. 65 The view is widely heldamong archae-ologists at leastthat antiquities do not belong within the logic of the market andthey should not be dragged into the arena of trade, a view that is reminiscent of the thinking about national symbols and the fetishization of their sanctity. 66

Needless to say that what matters is not only what is provided by the text of thelaw but also if and how it is implemented, an issue related to established admin-istrative practices and prevailing attitudes and mentalities.

3. THE GREEK CASE IN THE BROADER HERITAGE DEBATE

3.1. How Unique Is the Greek Case?

The special position and legal treatment of antiquities in Greece, as compared toother cultural legacies, are clear and go together with their close association withthe state, in a context of a wider and more inclusive approach to heritage andother important recent legislative innovations. This special status, which can betraced back to the nineteenth century, provides evidence that even today, in spite

of the enormous changes that have occurred in the meantime at many levels, an-cient monuments remain a privileged symbolic foundation for national identity

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and, in parallel with their growing role in other fields, especially in the tourismindustry, objects of ideological and political perception and use.

The causes, consequences, and perspectives of these functions that they serveneed further investigation, in the context of the reflection on the role of the nation-state in the global era, on the appeal to antiquity in order to acquire value for thenational self, and on the complex issue of national identity in a multicultural society.

The connection of archaeology with nationalism and with the nation-state can-not be regarded as an exclusively Greek phenomenon. Indeed, the near universal-ity of a relationship between nationalism and the practice of archaeology has beenhighlighted by many scholars. 67 As has also been pointed out, it would be sim-plistic to consider the study of this link as a study of the abuse of archaeology by nationalism. 68

Regarding the state-centric character of heritage protection, the observation made

for France could also be considered relevant for Greece, in that it results fromhistorical reasons related to the centralized tradition of the country and the per-ception of monuments as elements of national identity. 69 It goes without saying,though, in connection with this character, that the effects on heritage manage-ment due to the serious structural problems of the Greek state, particularly evi-dent in the current financial crisis, deserve further investigation.

Nevertheless, as has been stated for the nineteenth century, nowhere in Europeshowed a closer connection between politics and historical consciousness thanGreece.70 A particular source of tension is the fact that Greek antiquity has been

considered the fount of Western civilization. Consequently, modern Greece hasbeen described as the archetype of stress between local and global heritage andthe Elgin or Parthenon Marbles as exemplifying the problem of a legacy that isboth Greek and global.71 Furthermore, and in conjunction with this, the key po-sition of antiquities in the national consciousness and imagination and the early,pioneering, state control over and legislation on archaeological remains should beviewed as specific to Greece.

In any case, the special legal regime of archaeological objects compared withother cultural objects is not only due to their value as national symbols. It is alsorelated to factors such as their age, their link with the ground where they havebeen buried, and the importance of their context, which also justifies a specialterritorial link to the country of modern discovery. 72

Strict export controls and declarations of state ownership of antiquities are alsoto be encountered in the national legislation of many other source countries, asalready mentioned. 73 Moreover, in comparative terms, Greek legislation does notappear excessively restrictive, since it permits under certain conditions the export,exchange, and loan, even long-term, of movable antiquities as well as their pos-session by private persons, under state control. State ownership of antiquities couldthus be understood as a collective right over objects lying still undiscovered and,

in any case, judged too important to be at the mercy of purely private and coinci-dental interests. Furthermore, such national ownership laws strengthen the deter-



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rents against clandestine excavation by enabling this to be punished as theft andby facilitating the recovery of the looted objects, even in a foreign jurisdiction. 74

They appear therefore to be adapted to the specificities of undiscovered antiqui-ties and protecting the contextual integrity of archaeological sites.

So, even in so-called market states, archaeologists and other heritage profes-sionals often support national export controls and ownership laws and claims forreturn or restitution of archaeological and other cultural objects to the country orcommunity of origin. They also react against sale, privatization, or other practicesperceived as excessive commodification of cultural patrimony. 75

3.2. Cultural Nationalism Versus Cultural Internationalism?

A view that is often put forward, originally expressed by John Henry Merryman,

professor at the Stanford Law School, pits cultural internationalism against thecultural nationalism 76 of Greece and other source countries, supported, in thisbipolar scheme, by UNESCO and archaeologists in the market countries, whodepend on host nations for their research. According to cultural international-ism, generally invoked by art dealers, private collectors, and many major artmuseum officials, cultural property belonging to any people is the cultural her-itage of all mankind (in the words of the Preamble of the 1954 Hague Conven-tion), and what matters most is preservation of, truth about, and access to it,wherever it is situated, from whatever cultural or geographic source it derives. In

parallel, the liberalizationwithin certain limitsof the international trade incultural property is regarded as necessary. This viewpoint has also been invokedin favor of the acquisition of unprovenanced antiquities recently surfaced by mu-seums in market states, chiefly by the director of the Art Institute of Chicago,James Cuno. 77 In his publications, Cuno criticizes what he calls nationalist re-tentionist cultural property laws and the governments of the countries of mod-ern discovery, claiming identity with ancient cultures, for manipulating antiquitiesfor political gains.

But is the idea of the cultural heritage of mankind meaningful or is it an empty vessel?78 As has been observed, while cultural treasures may generate universalinspiration and appreciation, they are not universally created nor can there be in-ternational possession. 79 This notion seems thus ahistorical, if not self-contradictory, since confining possession to some while excluding others is theraison d tre of heritage. 80 Though the concepts of common cultural heritageor world heritage, as used in UNESCO instruments, are not so precise, it is clearthat they refer not to ownership but to common responsibility of the internationalcommunity for the protection of essential cultural legacies, while respecting thesovereignty of the state in whose territory they are situated, recognized as the mainresponsible party.

Moreover, the cultural internationalist approach would seem somewhat hypo-critical, insofar as it does not lead to a fair distribution of antiquities and cultural

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objects in general (and, indeed, using this logic, why not include other materialresources as well?) throughout the world. But, instead, it leads to a one-way flow from less developed or from former colonies to wealthier countries in the West, sothat it ends up looking far more like cultural imperialism. 81 At the same time, thisway of thinking is used to justify the retention even today of cultural objects de-rived from different regions of the world by the so-called universal museums of the great metropolitan centers in Western Europe and North America, 82 whichhave acquired them in other eras by questionable means and with the aim of as-serting the cultural superiority of their nations. As has been aptly suggested, theseretentionists often

defend their position by deconstructing the national identity of theiropponentsclaiming, for example, that modern Greeks are not truedescendants of ancient Greeks . . . [without] simultaneously willing tocall into question their own nationalistic claims to cultural superiority.In other words, retentionists are quick to condemn the parochial nation-alism of their opponents, but rarely question their own more imperialnationalisms, which they mask in the name of internationalism. 83

From another aspect, this internationalist approach is criticized of being usedoften as an excuse for reliance on market-based principles and as apologetic forthe wide-scale looting of archaeological sites. 84 In any case, trading in art andantiquities remains the only major sector of international trade where secrecy pre-vails as to the provenance of the acquisitions, a fact that encourages further loot-

ing and the destruction of archaeological sites and the loss of archaeologicalcontexts. 85 This argument tends to prevail today with regard to museum policies,which largely oppose the acquisition of unprovenanced items, even if in severalcases museums have been rather forced to think differently by source nations res-titution campaigns and criminal investigations. 86

Moving away from binary dichotomies and polarized approaches that have dom-inated the debate, and from unproductive controversies among governments andinstitutions with competing interests, many voices are raised nowadays in favor of more balanced views. These views support collaborative solutions for heritage pres-ervation and accessibility, such as mutually beneficial partnerships to reduce theincentive for pillage and illicit traffic and to develop joint research projects andinternational exchange through traveling exhibitions and long-term loans.

ENDNOTES

1. Skopetea, The Model Kingdom, 197.2. Speech of Iakovos Rizos Neroulos, in Synopsis ton Praktikon tis Arhaiologikis Etairias 1838, 26.3. On the protection of antiquities and cultural heritage in general, Ephimeris tis Kyverniseos

(Government Gazette, hereinafter FEK ) A' 153. An official translation of this law into Englishthough not followed faithfully in this articlemay be viewed at http: // www.unesco.org / culture /natlaws/media /pdf /greece/ gre_law_3028_engtof.pdf (accessed 10 April 2010).



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raised a number of problems of interpretation which the case law attempted to solve. It should alsobe mentioned that Greek Constitution provides for a special legal regime for the property and ces-sion of archaeological treasures and sites (article 18, para. 1 of the current Constitution of 1975),since 1911 (article 17, para. 2 of the Constitution of 1911).

23. For instance, in the Ottoman Empire a decree of 1906 declared for the first time that allantiquities found in or on public or private lands were state property; previously, under a decreeof 1884, one-half of any antiquities fortuitously discovered on private land were given to the land-owner (Ozel and Karadayi, Laws Regarding the Protection, 25). For Italy, see note 11. As early as1883, in Egypt a decree declared all antiquities property of the state, but a decree of 1891 providedfor the division of archaeological finds between the excavator and the state (Urice, The BeautifulOne Has ComeTo Stay, 14142, 17879). A Mexican law of 1887 also declared all archaeologicalmonuments to be state property, but it seems that this declaration was not sufficiently clear, as wasaccepted by the U.S. courts in the McClain decisions, who held that Mexican law did not clearly vest ownership in the Mexican government until 1972 (545 F.2d at 9971004 and 593 F.2d 658 at67071).

24. Circular 11538 of the Minister of Church Affairs and Public Education, A. Eftaxias, of 30

August 1899,Instructions concerning the implementation of Law 2646 on antiquities, reproducedin Geniki Ephoria Arhaiotiton, Collection of Archaeological Laws, 346350. In a similar spirit, in acircular of 1865, it was pointed out that those who dig without a permit and sell the antiquities they find to foreigners not only deprive the national Museum of the precious heirlooms of our ancestorsbut bring disgrace upon the nation among those to whom they sell them, as trading in the relics of its forebearsthose very relics which both aroused in it the sense of its own nationality and broughtabout the acquisition of its freedom(Circular 874 of the Minister A. H. Londos of 4 February 1865,Geniki Ephoria Arhaiotiton, Collection of Archaeological Laws, 5051).

25. See especially Lowenthal, Classical Antiquities; Morris, Archaeologies of Greece.26. See note 10.27. Article 111. It should be noted that Maurer, the author of the law, had studied medieval

German history, while it is also interesting that the rescue of the Byzantine Kapnikarea Churchof Athens in 1834 was due to the intervention of the keen classicist Ludwig of Bavaria, father of Otto.

28. Royal Decree of 1/ 19 December 1837, Geniki Ephoria Arhaiotiton, Collection of Archaeolog-ical Laws, 34. Similar considerations, in pleasing contrast with ancient monuments, explainthe proposal for the preservation of certain churches in the first town plan for Athens, that of Kleanthis and Schaubert (Kokkou, The Care for Antiquities, 112). Interest in these monumentswhich, though limited, was explicit, may be also be linked with a parallel turn in the interests of Otto toward the Byzantine Empire, whose system of government better matched his own monar-chy (see Dimaras, Hellenic Romanticism, 338; Hamilakis and Yalouri, Antiquities as Symbolic Cap-ital, 121).

29. At the inaugurating ceremony on the Acropolis in August 1834, in an attempt to tie sym-

bolically the rebuilding of the Parthenon with Ottos reign, Klenze announced the following: Allthe remnants of barbarism will disappear . . . not only here but in the whole of Greece, and theremnants of the glorious past will be surrounded with new shine. . . as a solid basis for the presentand the future. See Mallouhou-Tufano, The Restoration of Ancient Monuments, 19, who also shows(at 282) that the purifying interventions of the years 18351885 were similar to those that hadtaken place in other European countries that period, especially in Rome during the first threedecades of the nineteenth century. See also, among others, Hamilakis, The Nation and Its Ruins,5764, 8593.

30. The Society was founded in 1837 and had a sui generis relationship with the state, given thatit was entrusted with powers and granted privileges and means peculiar to the state. On its history see Petrakos, The Athens Archaeological Society .

31. Nevertheless, around the end of the century two museums belonging to private associations,the Historical and Ethnological Society, constituted in 1882, and the Christian Archaeological Soci-ety, founded in 1884, were set up in Athens. The National Gallery was established in 1900.



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32. Article 1 of Law 2646/1899. Paparrigopoulos is considered the national historian of Greece.His monumental work, History of the Hellenic Nation, appeared between 1860 and 1876.

33. As has been accepted by the consistent case law of the Court of Cassation ( Areios Pagos) ininterpreting the provisions of articles 1 and 2 of Codified Law 5351 / 1932, which are derived fromLaw 2646/ 1899 (Judgments 407 /1972 [Plenum], 673 /1973, 305/1990, 1031/ 1991,1205/1992, 558/1998, 895/2006 etc.).

34. Liakos,For the Restoration of Completeness and Unity, 180181. Cf. Hamilakis, The Nationand Its Ruins, who calls this new synthesis (different from the imported Western Hellenism) Indig-enous Hellenism.

35. Law 401/1914 On the foundation of a Byzantine and Christian Museum, FEK A' 347, asamended by Law 2674/ 1921, FEK A' 146; Law 1407/1918 On the foundation of a museum of Greek handicrafts, FEK A' 101, which deals with todays Museum of Greek Folk Art.

36. An expression introduced by the Hellenic Literary Association of Constantinople, which helda competition on the subject (Kyriakidou-Nestoros, Theory of Greek Folklore Studies, 66). See also,among others, Herzfeld, Ours Once More.

37. Article 15 of Law 2447/ 1920, FEK A' 169, included in Codified Law 5351 / 1932 (art. 52).

38. See also Liakos, For the Restoration of Completeness and Unity, 195.39. Law 1469/ 1950 On the protection of a special category of buildings and works of art later

than 1830, FEK A' 169.40. Article 24, paragraphs 1 and 6, of the Constitution of 1975, as amended in 2001. As the Coun-

cil of State has held in applying these provisions, cultural environment consists of monuments andother elements, of every kind, which are derived from human activity and make up the countryshistorical, artistic, technological and cultural heritage in general and its protection includes thepreservation of these elements in perpetuity (e.g., Judgments of the Plenum 3146 / 1986, 1097/ 1987,2300/ 1997, 3478/ 2000).

41. For a further analysis of the new law, see Voudouri, The New Law 3028 / 2002; and, moregenerally, the contributions included in Trova, Cultural Heritage and the Law .

42. Article 2, subpara. (a), on the definition of cultural objects, article 1, para. 2, on the countryscultural heritage (that is the laws field of application), articles 2, subpara. (e), and 5, on intangibleheritage.

43. According to article 2, subpara. (b), by monuments are meant cultural objects which con-stitute material evidence and belong to the countrys cultural heritage, whose special protection iscalled for. Monuments are divided into ancient and modern (or recent, in the official translation)(i.e., those later than 1830), and also into immovable and movable.

44. See also Hamilakis, The Nation and Its Ruins, 55, who points out the reference of Law 3028 tothe tripartite scheme in the definition of ancient monuments.

45. Article 2, subpara. (b), aa ' . Antiquities also include caves and paleontological remains, forwhich there is evidence that they are related to human existence.

46. Articles 6 and 20.

47. Article 7, para. 1, and article 21, para. 1.48. Article 4 of Law 1577/1985, FEK A' 210, as amended by law 2831/2000, FEK A' 40.49. Council of State 2338/ 2009. The annulled ministerial decision had been taken on Au-

gust 2007, following a positive opinion of a specific collective body, composed by the mem-bers of the Central Archaeological Council and of the Central Council for ModernMonuments, which was voted on a very narrow majority. On the reactions see http: //areopagitou17.blogspot.com / (accessed 10 April 2010). From another point of view, it is interest-ing to note that the metaclassical phases of the Acropolis are nearly absent from the new Museumsexhibition.

50. The action for annulment of the ministerial decisions concerning the nonclassification andthe permit of demolition of these buildings was rejected by the Council of State (Judgments 2339,

2340/2009), who had, however, in the meantime, ordered the suspension of their execution (E.A.1341/ 2008 and 130/ 2009). See also http:// www.monumenta.org / article.php?IssueID 2&lang

en&CategoryID 1&ArticleID 464 (accessed 10 April 2010).

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51. Article 2, subparagraphs (c) and (d), and articles 1216. A special protection for groups of buildings (or architectural ensembles) is, however, provided for by the Council of Europes GrenadaConvention of 1995, which is ratified by Greece and is often invoked by the Council of State, as inthe above judgment.

52. For example, it includes in the notion of immovable monument its surroundings, decorativeelements, or even movables related to its use (articles 2, subpara. (b), cc ' and 6, para. 2), provides forprotection zones around monuments (articles 13 and 17), prohibits the removal of all or part of animmovable monument (art. 42), provides for a special treatment of movables detached from im-movables (art. 20, para. 1, b ' ), and favors the conservation in situ of the archaeological finds whenfeasible (art. 36, para. 8). The principle of preserving in situ the elements of cultural heritage, de-pending on their nature, is also laid down by the Council of State as deriving from article 24 of theConstitution (Judgments of the Plenum 2300 / 1997, 3478/ 2000).

53. See Voudouri, The New Law 3028 /2002, 3638, on its measures against illicit traffic of cultural objects, which include provisions for preventing and prohibiting the traffic in Greecein cultural objects acquired or exported from other countries in violation of their legislation.On this subject see also Law 3658/2008 Measures for the Protection of Cultural Objects, FEK A'

70.54. Notably article 3. See also article 4 on the National Inventory of Monuments, article 45 on

museums and article 46 on access to and use of monuments and sites. On the accessibility of mon-uments see articles 9, para. 3, 11, para. 3, 29, 30, para. 3, and 31, paras. 7 and 9, as well.

55. Cf. Holtorf, What Does Not Move.56. Articles 4950.57. For instance, in the cases of the permits for possession of movable antiquities (art. 23), export

of ancient or modern monuments (art. 34), dealing in them (art. 32), or the ministerial decisions oncarrying out excavations (art. 36), recognizing collectors (art. 31), or museums (art. 45), or allowingloans and exchanges (art. 25).

58. For example, articles 6, para. 5, and 20, para. 3, on hearing procedures; articles 19 and 9,paras. 45, on compensations; articles 8, paras. 36, and 24, paras. 36, on rewards; and articles4748, on financial incentives. See also articles 28, para. 6, and 31, para. 11, on the right of preemp-tion of the state, museums, and collectors (in that order).

59. See articles 7 and 21. By way of exception from the principle of state ownership, article 33,para. 3, provides, under certain conditions, for the maintenance of the right of ownership of privatepersons over antiquities, as an incentive forlicitimportation, and particularly for their repatria-tion to Greece, with parallel provision that phenomena of illicit traffic should not be favored. Inaddition, according to the transitional provisions of the law, the existing rights of ownership of theChurch of Greece and, more generally, of religious legal persons on religious antiquities are main-tained (article 73, para. 1).

60. It is interesting also to note that Law 3028 of 2002 does not reiterate the provision of theprevious legislation that immediately followed the rule of state ownership of antiquities, statingAc-

cordingly, the right and care for their discovery and preservation in public museums belongs to theState (article 1 of Law 2646 of 1899, included in article 1 of Codified Law 5351 of 1932).

61. The Benaki Museum, which was established by Law 4599 of 1930 (FEK A' 138), by virtue of a donation to the state and is not purely archaeological, and the N. P. Goulandris FoundationMuseum of Cycladic Art, which was set up by Law 1610 of 1986 (FEK A' 89) and derived from aprivate collection, are private-law legal persons, and more specifically foundations. On the status of museums in Greece, see Voudouri, State and Museums.

62. There are only two recent exceptions of state archaeological museums functioning as publiclaw legal entities: the Kanellopoulos Museum (a museum created in 1976 to house antiquities do-nated to the state), according to Law 3600 /2007 (FEK A' 177), and thenewAcropolis Museum,established by Law 3711/2008 (FEK A' 224). The other museums are incorporated into the local

Ephorates of Antiquities, except eight major museums functioning as special services of the Minis-try of Culture, distinct from the Ephorates (Presidential Decree 191 of 2003,Statute of the Ministry of Culture, FEK A' 146, articles 5158).



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63. On Greek legislationprevious and currentconcerning the disposal, import, export andloan of antiquities, see Voudouri, Greek Legislation Concerning the International Movement. Onthe previous regime, see also Petrakos, Essay on the Archaeological Legislation, 3035, 7992.

64. By Law 3711/2008, as noted above. See, in particular, the reactions of the Association of Greek Archaeologists at http: // www.sea.org.gr /press /pages/viewpress.aspx?PressID 18 (accessed 10 April2010). In my opinion, certain provisions of this law, concerning, in particular, the separation of theadministration of the museum from the administration of the site of Acropolis (even in spite of thepolicy of connecting closely the Museum to the Sacred Rock and to the claim for the return of the Parthenon Marbles), as well as the designation of the Museums Administration, pose, indeed, anumber of problems.

65. See Voudouri, State and Museums, 354356, 296316. The above company, whose actionseems actually rather problematic, was established by art. 6, para. 2 of Law 2557 /1997, FEK A' 271,and renamed the Organisation for the Promotion of Greek Culture SA by art. 73, para. 16 of Law 3028/ 2002.

66. To use an expression of Konstantinos Tsoukalas ( The Power as People and Nation, 411).67. In particular, Kohl and Fawcett, Nationalism, Politics and the Practice of Archaeology ; Diaz-

Andreu and Champion, Nationalism and Archaeology in Europe; and Meskell, Archaeology under Fire.68. Hamilakis, The Nation and Its Ruins, 14, who considers that it is the study of the develop-

ment of a device of modernity (archaeology as autonomous discipline) to serve the needs of themost powerful ideology of that modernity (nationalism).

69. Frier, La loi de 1913, 260.70. Mazower, Archaeology, Nationalism and the Land, 33.71. Lowenthal, The Heritage Crusade, 244.72. See also Siehr, The Beautiful One Has ComeTo Return, 129.73. See note 23. See also thesomewhat outdateddata contained in OKeefe and Prott, Law

and the Cultural Heritage , 1: 3471, 188195.74. National laws vesting ownership of antiquities in the state have been recognized by foreign

courts, as recently in the United States , U.S. v. Schulz , 333 F.3d 393 (2nd Cir. 2003), and in the UnitedKingdom, Government of the Islamic Republic of Iran v. The Barakat Galleries Ltd , [2007] E.W.C.A.Civ 1374, [2008] I All E.R.1177. See further Gerstenblith, Schulz and Barakat .

75. As in France, where the government has been accused of exploiting the patrimony for tradeand diplomacy, on the occasion of the recent bilateral agreement concerning the opening of a branchof the Louvre in Abu Dhabi (see, e.g., Le Monde Diplomatique, February 2007; USA Today, 9 August2007). Another interesting example is the reaction to an Italian privatization law of 2002, even in theform of a petition against the privatization of Italian excavations, museums and monuments, signedby the directors of 37 of the worlds major museums (see Bauer, New Ways of Thinking, 72223).

76. Notably Merryman, Two Ways of Thinking (his basic study) and Talking About the Elgin Marbles (containing most of his articles on this theme).

77. Particularly Cuno, Who Owns Antiquity? and Whose Culture?

78. To use David Rudenstines words, in his Cultural Property, 75.79. Greenfield, The Return of Cultural Treasures, 312.80. Lowenthal, The Heritage Crusade, 230.81. See, in particular, Prott,The International Movement of Cultural Objects, 228; Koumantos,

Rflexions pralables sur la protection, 163; and Lyons, Objects and Identities.82. See the Declaration on the Importance and Value of Universal Museums of December 2002

(reproduced and commented in Lewis, The Universal Museum), signed by 19 directors of theworlds leading museums, in which, citing the example of the sculpture of classical Greece to illus-trate the role of universal museums in highlighting its significance for mankind as a whole, they oppose the repatriation of objects which have belonged to museum collections for many years,considered as part of the museums that have cared for them, and by extension part of the heritage

of the nations which house them.83. Handler, Who Owns the Past? 71.84. Gerstenblith, The Public Interest in the Restitution, 200.

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85. Cf. Bator, An Essay on the International Trade in Art, 360. On the international trade inantiquities, see also, among recent publications, Brodie et al., Archaeology, Cultural Heritage and the Antiquities Trade; Bauer, New Ways of Thinking.

86. See, among many, Hallman Museums and Cultural Property. See also, more recently, in theUnited States the AAMDs and AAMs new guidelines, Association of Art Museum Directors, New Report of on the Acquisition of Archaeological Materials and Ancient Art , June 2008, (available at http: //www.aamd.org /newsroom /documents /2008ReportAndRelease.pdf, accessed 10 April 2010) and Amer-ican Association of Museums, Standards Regarding Archaeological Material and Ancient Art , July 2008(available at http: // www.aam-us.org /museumresources / ethics/upload /Standards%20Regarding%20Archaeological%20Material%20and%20Ancient%20Art.pdf, accessed 10 April 2010). This evolu-tion is related to recent developments, such as the following: the conviction in New York of Frederick Schulz, former president of the National Association of Dealers in Ancient, Oriental and PrimitiveArt, for dealing in antiquities removed from Egypt in violation of its 1983 national ownership law (U.S. v. Schulz , see note 73), the criminal trials in Rome of former J. Paul Getty Museum antiquitiescurator Marion True and U.S. art dealer Robert Hecht, and the return of looted antiquities fromseveral major U.S. museums to Italy, as of certain items from the Getty to Greece.

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