Martin Wilson is the former Chief General Counsel for Christie’s, the auction house at the centre of this case. Now as Chief General Counsel for Phillips, who do not trade in antiquities, his interest in the subject is academic. Here he shows a firm grasp of the relevant arguments at hand in a detailed article published on Linked In.
Wilson gives the back story to how Turkey ended up launching a legal claim for the return of the Guennol Stargazer, an Anatolian marble figure dating to around 3,000 BC. It also explains why Turkey lost its claim in the District Court. A lack of evidence to support its claim combined with its failure to act for years when it could have done so weakened Turkey’s case beyond hope here.
Arguably Wilson’s most important observation is as follows: “It is sometimes assumed that, because of the complex ethical, political and historical issues which surround them, cultural restitution claims are not subject to the same evidential requirements and rules of justice which apply to other claims or at least that these rules should be applied less rigidly. This ruling illustrates that this will not be the approach where the parties bring their dispute before the US Courts. It confirms that in common with any ordinary civil ownership dispute, a party claiming restitution must, if it hopes to prevail in a US court of law, be able to satisfy the evidential burden of proving the facts necessary to establish ownership in accordance with the requirements of the law.”
This may also explain why Italy has avoided going to court in its claim against Alan Safani.
Wilson notes the increasingly commonplace arguments used by source countries in their attempts to reclaim artefacts: “It is not uncommon for the parties on either side of the debate in cultural property restitution cases to assume bad faith and wrongdoing. The Turkish government followed a line of argument which is commonly used in cultural restitution cases – that an antiquity outside of its country of origin without evidence of how it came to leave that country should be treated by collectors as a red flag and that there is a presumption of illegal export or excavation which arises in such circumstances.”
Fortunately, although source countries’ attempts to reverse the burden of proof in this way may work under the terms of their Memoranda of Understanding with the United States, it is a different matter when these claims go to court, as this case shows.
Wilson also reminds us that statutes of limitation do count, although they are constantly overlooked.
Crucially, he concludes with some sound advice: “While the judgment does not say so, the outcome of the Stargazer case highlights the shortcomings of the debate over cultural property being expressed as a question of “ownership”.” Certainly, while source countries continue in their attempts to ride roughshod over individuals’ legal rights, no one will be satisfied.