The Duryodhana dilemma: United States v. A 10th Century Cambodian Sandstone Sculpture and a proposed code of ethics-based response to repatriation requests for auction houses.

• Jurisdiction: United States
• Author: Henderson, Lauren
• Date: 01 December 2014

Introduction I. Sotheby's Interrupted Sale of the Khmer Sculpture, Subsequent Litigation, and Settlement A. Background on the Duryodhana, the Khmer Empire, and Cambodian Cultural Values B. Sotheby's March 2011 Auction C. Ensuing Litigation D. A Politically Motivated Dispute? E. Settlement II. Law Applicable to the Government's Forfeiture Action A. The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property B. The Convention on Cultural Property Implementation Act C. The UNIDROIT Convention on Stolen or Illegally Exported Objects. D. The Memorandum of Understanding (MOU) Between Cambodia and the United States E. The National Stolen Property Act F. The Interpretation of the NSPA in Federal Appellate Decisions G. Critique of the Current Legal Structure III. Proposal: Auction Houses Should Look to Museums for Guidance in Navigating This Inconsistent and Outdated Legal Response A. Legal Distinctions Between Museums and Auction Houses B. A Proposed Uniform Code of Ethics for Auction Houses Conclusion Introduction

On March 24, 2011, Sotheby's New York unexpectedly removed its showcase lot, the Duryodhana, (1) from its Indian & Southeast Asian auction scheduled to occur that same day. (2) This last-minute adjustment occurred in response to a letter received hours earlier from the Secretary General of Cambodia's National Commission for the United Nations Educational, Scientific and Cultural Organization (UNESCO), who alleged that the sculpture had been illegally removed from Cambodia and asked that Sotheby's delete the lot from the auction. (3) One year after Sotheby's voluntarily pulled the lot, the United States government filed a civil forfeiture action in the United States District Court for the Southern District of New York, United States v. A 10th Century Cambodian Sandstone Sculptured. (4) By filing this action, the U.S. government aimed to take title to the Khmer sculpture and return it to Cambodia. (5)

United States v. A 10th Century Cambodian Sandstone Sculpture is just one example of the repatriation requests from foreign countries that auction houses in the United States face each year. Some scholars report that countries such as Cambodia have been mounting more repatriation requests in recent years. (6) Auction houses confronted with these repatriation requests must struggle through the ambiguities and deficiencies in the current law when deciding how to respond. As an alternative to the available legal response to repatriation requests, I propose that auction houses should develop a uniform code of ethics to guide their efforts in replying to these requests. Auction houses should look to the International Council of Museums' (ICOM) Code of Ethics for Museums (7) as a model for fashioning their own code of ethics. If all major auction houses voluntarily agree to adopt a uniform code of ethics, there would be fewer repatriation requests and less uncertainty surrounding compliance with the current complex web of laws and regulations that differ from country to country.

In Part I, I describe the background of the Duryodhana, including how the sculpture fits within the Cambodian cultural framework and Cambodian perceptions of property and ownership. I also summarize the litigation and recent settlement surrounding the sculpture, noting the parties' principal contested points that remain unresolved. In Part II, I outline the current legal response for addressing repatriation claims, including its deficiencies. In Part III, I propose that auction houses look to museums for guidance in order to remedy the unsettled and unsatisfactory state of this legal structure. By adopting a uniform code of ethics modeled after the ICOM Code of Ethics for Museums, auction houses will be better situated to avoid repatriation claims. Finally, I conclude by suggesting specific provisions that auction houses might adopt as a starting point for developing a uniform code of ethics.

1. Sotheby's Interrupted Sale of the Khmer Sculpture, Subsequent Litigation, and Settlement

   1. Background on the Duryodhana, the Khmer Empire, and Cambodian Cultural Values

      The Khmer sculpture that is the defendant in rem in United States v. A 10th Century Cambodian Sandstone Sculpture depicts a Hindu warrior called the Duryodhana. (8) The Duryodhana comes from the Prasat Chen temple in Koh Ker, an archaeological site located in northern Cambodia. (9) Within the Prasat Chen temple, the Duryodhana originally stood face-to-face with a second sculpture called the Bhima, placed so as to "depict[] [the warriors] at the moment of preparation for their epic battle." (10)

      Both the Duryodhana and the Bhima were created during Jayavarman IV's rule of the Khmer Empire, (11) which lasted from AD 928 to 942. (12) At the Khmer Empire's peak, the territory reached "from Burma to Indochina and from China to Malaysia." (13) Jayavarman IV, who transferred the Empire's capital from Angkor to Koh Ker, favored grand and elaborate styles of art and architecture, which are showcased at Prasat Chen and other temples of Koh Ker. (14) The Duryodhana, with its limbs poised for action, embodies the unique Koh Ker style, which one Phnom Penh-based UNESCO agent has admired for its "freedom of sculpting things out of the frame." (15)

      To more fully understand the significance of the Duryodhana to the history of cultural property in Cambodia, it is important to note the distinct aspects of Cambodian constructs of culture and art. The Cambodian culture's values of hierarchy, collective heritage, and ancestry have influenced the country's art and architecture. (16) More specifically, art and architecture from the Khmer Empire were designed to reflect the empire's "'glorious' and 'prosperous' period." (17) Thus, references to the glorious Khmer Era strongly influence Cambodia's cultural identity today. (18) Although Cambodian culture has always placed great value on ancestry and ties to the past, the country did not issue many repatriation claims until recent years, (19) when its political situation stabilized after the Khmer Rouge era and the Second Civil War. (20) As Cambodia's Prince Ravivaddhana Sisowath has admitted, "the preservation of ancient things is not part of [Cambodia's] traditional culture," and it was only after the designation of Angkor as a World Heritage site in 1995 that "a deeper consciousness developed among the people of Cambodia, who began to take pride in their antiquities." (21) The combination of a deeper consciousness regarding Cambodia's patrimony (22) and the stabilization of the country's political situation has contributed to a rise in repatriation requests, such as the request issued to Sotheby's.

   2. Sotheby's March 2011 Auction

      Sotheby's planned to auction the Duryodhana as the centerpiece of its March 2011 Indian & Southeast Asian auction. In 2010, Ms. Decia Ruspoli, a Belgian widow whose late husband bought the Duryodhana from a London auction house in 1975, consigned the sculpture to Sotheby's. (23) Sotheby's considered the Duryodhana to be so impressive that it featured the sculpture on the cover of the auction catalogue. (24) The catalogue entry, which listed the estimated hammer price at $2-3 million, described the sculpture as one of the "great masterpieces of Khmer art, unequaled by image from any other period in [its] portrayal of drama and potential action." (25) Cambodia's repatriation request interrupted the potential sale of the Duryodhana, and the U.S. government eventually filed a civil forfeiture action against the defendant in rem. (26) Sotheby's joined the suit as a claimant per the terms of its consignment agreement with Ms. Ruspoli. (27)

   3. Ensuing Litigation

      In its Verified Amended Complaint, the United States offered three main allegations surrounding the Duryodhana. First, the government alleged that the sculpture was looted from Prasat Chen in 1972 by a Thai network that transported the sculpture in two pieces (the head and the torso) to a dealer in Bangkok, who then sold the sculpture to a collector. (28) Second, the government alleged that the collector consigned the Duryodhana to a British auction house, which knew that the sculpture had been stolen when it sold it to the Ruspolis in 1975. (29) Finally, the government alleged that Sotheby's made inaccurate representations about the Duryodhana's provenance when it attempted to sell the sculpture at auction in 2011. (30)

      One of the principal disputed points between the parties, left unresolved by the settlement, is whether Cambodian law effective at the time of the sculpture's removal from the country actually confers ownership of the sculpture on the Cambodian government or whether the law merely functions as a classification order. (31) If the former is true, then the United States would have had a greater chance of successfully invoking the provisions of the National Stolen Property Act (NSPA) had the case not settled. (32) If the latter is true, by contrast, the government would have had a much more difficult time convincing the court to grant the forfeiture. (33)

      According to the claimants, Cambodian law did not explicitly claim national ownership of antiquities until 1992. (34) The Cambodian government, on the other hand, alleged that French colonial decrees from 190035 and 192536 are ownership laws, which would mean that the sculpture was government property when it left Cambodia.

      After filing their Joint Answer in May 2013, Sotheby's and Ms. Ruspoli filed a Motion for Judgment on the Pleadings and a Stay of Discovery in September 2013. (37) As part of this motion, the claimants included an affidavit from Professor Alexandre Deroche, a French law professor with expertise in property law that governed French colonies, (38) whom the claimants retained to provide opinions on the 1900 and 1925 decrees pursuant to Federal Rule of Civil Procedure 44.1.39 The claimants relied upon...