Collector Michael Steinhardt has been in the news this week, and not for the right reasons. On Monday, an agreement was announced whereby the New York DA’s Office would not prosecute Steinhardt for acquiring looted antiquities and, in exchange, Steinhardt would surrender 180 such artefacts to the DA, and these will soon (one hopes) be returned to their countries of origin. Steinhardt has also given an undertaking to the DA not to engage in antiquities buying ever again, a rather startling commitment that has caught the attention of the press and social media. As Jason Felch of Chasing Aphrodite has surmised, “Presumably the ban is a condition of a deferred prosecution agreement, with a sealed indictment in a drawer if Steinhardt breaks it.”

In order to provide a stark contrast to this piece of hot news, let us turn to another recent dispute involving the same collector. This one did not involve criminal proceedings, but rather a civil claim brought by the Republic of Turkey against Steinhardt and Christie’s auction house. In September, this four-year civil litigation concluded with a 25-page judgment from US District Court judge Alison Nathan. The dispute was over a little marble sculpture (9 inches tall) from Anatolia dating from the 3^rd Millennium BCE and consigned by Steinhardt to auction at Christie’s in New York in 2017. The figure’s oblong head is tilted back as though looking at the sky, meaning it is part of a group known as ‘stargazer’ idols, of which only a few are still in existence matching its quality and condition. Turkey got wind of the sale and sought to stop it, eventually bringing claims against the auction house and consignor in the torts of replevin and conversion. But these proved unsuccessful in court.

Screenshot advertising Christie’s sale of the Stargazer, April 2017 © Christie’s

The two outcomes couldn’t be more different. The New York DA’s investigation of Steinhardt, although stopped, will result in 180 artefacts being returned, while Turkey’s civil case appears comparatively fruitless. Pro-market antiquities collector and lawyer Peter Tompa offered an explanation for the difference on Twitter: “Thankfully, keeping the burden of proof on a government seeking a repatriation still means something, at least where there are the resources and will to fight,” he wrote referring to the Stargazer case. In relation to the DA investigation, he continued: “Harder to do when an aggressive prosecutor is threatening jail time. Then it’s more of a negotiation with a weak hand.”

The basis of Judge Nathan’s decision in the Stargazer case was two-fold. First, despite vesting statutes for cultural property going back to 1906 in Turkey, there was no concrete evidence to prove the item came out of Turkey after that date. In fact, it was impossible to tell for certain if it had left Turkish territory in the modern era at all (it could have been transported in antiquity, for instance, to the territory of what is now Greece). And secondly, the judge held that Turkey had waited too long to bring its claim before the US courts. While the country may have been within the New York limitation period (three years from demand and refusal), it had effectively slept on its rights and fell victim to the ‘laches’ defence.

In New York as in England, laches operates similarly to the limitation period, except its basis is equitable, rather than legislative. The Stargazer figure had been displayed in public many times (including at the Metropolitan Museum on-and-off for over thirty years) and had frequently been written about by scholars, including in Turkish publications. According to the judge, Turkey should have acted long before 2017 in asserting its rights, and by its failure to do so Steinhardt, as the item’s owner, would have been unfairly prejudiced had the claim been upheld. Turkey thus failed on the evidentiary point as to title and under the equitable doctrine of laches.

Afficionados of the excellent Art Law Podcast will have heard last week’s episode on the Stargazer litigation and the thought-provoking interview with Tom Kline of Cultural Heritage Partners, who was the lead attorney for Steinhardt/Christie’s in the case. In the episode Kline sets out the case in favour of his clients – as any good lawyer would do – with convincing arguments, many of which ultimately found favour with the court. His entirely logical exposition makes the reasonable listener wonder why such a case was brought in the first place. The evidence of removal, after all, seemed so unclear, while the piece had been in the public sphere for years and extensively published. Why then might Turkey be so intent on bringing what was no doubt a very expensive litigation through the US courts?

In many ways, one can sympathise with Turkey trying to recover cultural property removed many years earlier. In some instances, public display of an object, especially in a public museum, might not appear so irksome as the sale of that same object at auction. Even if privately owned, a piece at a museum can be left untouched, not unlike a sleeping dog. But as soon as the object is put on the market, all bets are off. In early 2017 the auction house actively advertised the Stargazer and the piece ultimately went for nearly $13 million – a sale that was eventually annulled by the buyer due to Turkey’s claim. This might provide one explanation for the delay in the context of laches: a country may reasonably refrain from taking active interest until an act occurs that is such an affront to the sanctity of its cultural heritage that its dignity is understandably pricked.

The problem with legal proceedings is that they don’t offer a viable forum to hear issues raised on the basis of morality. This was certainly true of the Stargazer trial. If laches can be triggered by the plaintiff’s knowledge (or constructive knowledge) of a potential claim, the debate will turn solely on the question of when Turkey had notice that the object was held by the possessor, to the possible exclusion of other valid considerations. The different intentions relating to the possession of an object (for simple museum display on the one hand or the pursuit of immediate profit on the other) don’t seem to be distinguished in a strict legal analysis.

Countries bringing such claims should know what they are getting into. Courts require hard evidence of the elements of a claim. And any delay needs a solid explanation defensible in law. So, once again, why did Turkey bring a claim?

Before offering an answer, let us turn to a very different return that occurred six weeks after the Stargazer decision, this one to the great benefit of Turkey. The UK’s Gilbert Trust restituted a Bronze Age ewer from its collection, commemorated with a ceremony at the Museum of Anatolian Civilizations in Ankara, Turkey on 26 October. As with the Stargazer, it wasn’t entirely clear how or when the item had left Turkey. Unlike the Stargazer, however, the matter didn’t go to court. It didn’t need to: the Gilbert Trust proactively agreed to restitute. And this was an entirely appropriate decision, as I’ve explained elsewhere.

The Bronze Age ewer returned by the Gilbert Trust to Turkey in October. © Arthur and Rosalinde Gilbert Trust

When comparing the Stargazer case with the Gilbert return, we see the obvious pitfalls of bringing a claim to court. The law demands convincing evidence of title vesting in the country of origin, even if it is already abundantly clear that an item was created on that country’s territory at some point in the past. A plaintiff must prove the legal elements on which its claim subsists, imposing a burden that is often impossible to discharge. Even that supposed paragon of fairness – equity – will place demands on the claimant, who often needs to find convincing justification for not having acted earlier. The inference in the Stargazer case was that Turkey had sufficient notice to act many years prior. This inference, essentially a legal fiction, ultimately proved impossible to rebut. But such arguments over technicalities often prevent an engagement with the heart of the ethical matter – the moral question of where the item rightfully belongs today.

Usually narratives play out more favourably for countries of origin when decisions are made on an ethical, rather than a strictly legal, basis. Ethical processes allow decision-makers to focus on the moral question and to consider practical aspects of return or retention with claimants and other stakeholders, a flexibility not afforded by the court process. That’s not to say the courtroom can’t at times be a necessary forum for resolving cultural property disputes. But when events giving rise to such disputes occurred in the distant past, the law sets the burden of proof at exacting standards, which can detract from the process of obtaining a true resolution between the parties. Here the question was – or should have been – should an artefact from the mists of early human society be held in a country’s museum as a token of that country’s link to its ancient past or should it be held privately, to be bought and sold according to the needs and interests of the owner?

We can reflect on the wisdom of Turkey’s decision to begin a lawsuit against Steinhardt and Christie’s. Was this not a perilous undertaking from the start? Perhaps it might have been easier to sit back and wait for the ethical landscape to shift (which often occurs gradually), in order to be approached by a Gilbert Trust or other likeminded entity intent on ‘doing the right thing’.

And yet consider the outcome. Steinhardt might have won the battle, but his actions have now been thoroughly investigated (both by the court and, in the matters referred to at the beginning, by the New York DA) and he has been forced to withdraw from the world of antiquities collecting for good. Moreover, who today would buy or accept antiquities from him without serious reservations? And who would want to buy the little Stargazer? Recall that the 2017 buyer backed out of the purchase. Perhaps Steinhardt’s title to sell is clear, but this is only true under New York law. A potential buyer from another jurisdiction would have to give serious consideration as to whether title in New York is a guarantee of title elsewhere. The matter is certainly less settled than most astute buyers would require. As a result, the artefact slips one notch away from the world of commerce… and perhaps one notch closer to another form of outcome entirely.