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

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On March 24, 2011, Sotheby’s New York unexpectedly removed its showcase lot, the Duryodhana, from its Indian & Southeast Asian auction scheduled to occur that same day. 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. 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 Sculpture. By filing this action, the U.S. government aimed to take title to the Khmer sculpture and return it to Cambodia.

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. 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 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 struc- ture. 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.

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