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Khmer Statue – Cambodia and Sotheby’s and the United States

In March 2011, Sotheby’s offered at auction in New York a Khmer statue. The statue was pulled out of the sale as a result of Cambodia’s request for its restitution. Cambodia claimed that it was illegally removed from the site Koh Ker during the 1970s and should be returned to them.

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Citation: Ece Velioglu, Anne Laure Bandle, Marc-André Renold, “Case Khmer Statue – Cambodia and Sotheby’s and the United States,” Platform ArThemis (http://unige.ch/art-adr), Art-Law Centre, University of Geneva.

In March 2011, Sotheby’s offered at auction in New York a Khmer statue. The statue was pulled out of the sale as a result of Cambodia’s request for its restitution. Cambodia claimed that it was illegally removed from the site Koh Ker during the 1970s and should be returned to them. Sotheby’s neither consented to its return, nor agreed to sell it to a private collector willing to donate it to Cambodia. Instead, it awaited a court decision on the matter of ownership. In April 2012, the United States (U.S.) filed a forfeiture action against Sotheby’s on the ground that the statue was illegally imported into the U.S. In December 2013, Sotheby’s voluntarily decided to return the statue to Cambodia and thereby ended the dispute before the U.S. courts.

I. Chronology

Post 1970 restitution claims

  • Between the mid-late 1960s and 1979: Cambodia went through a period of major political conflicts and civil wars. During this time of unrest, the archaeological site of Koh Ker situated in northern Cambodia suffered from serious looting. It is believed that the looting in Koh Ker was organized by a looting network which involved local teams and dealers in Thailand[1].
  • In or around 1972: Evidence suggests that a sandstone statue of Duryodhana, an epic warrior, dating from the 10th c. (hereafter Statue)  was illegally removed from the Prasat Chen Temple in Koh Ker[2]. The Statue had been broken off at its ankles, separating the body from its feet and the pedestal which is still preserved in situ[3]. It was first transferred to a dealer in Bangkok, then to a well-known collector of Khmer antiquities who allegedly knew that the Statue was stolen from Koh Ker[4].
  • 1975: This collector sold the Statue via a British auction house to a Belgian businessman, Mr. Ruspoli Di Poggia Suasa[5].
  • 2000: Upon the death of Mr. Ruspoli, his wife, Ms. Ruspoli, inherited the Statue[6].
  • March 2010: Ms. Ruspoli consigned the Statue to Sotheby’s for its sale at auction[7].
  • April 2010: Sotheby’s imported the Statue from Belgium to the United States[8]. When preparing the auction sale, Sotheby’s contacted Emma Bunker, a Khmer art expert, for the drafting of the catalogue entry[9].
  • Early June 2010: At first, Emma Bunker expressed serious concerns to Sotheby’s about the Statue being offered at a public sale. In an email, she informed Sotheby’s of a report showing that the Statue was definitely stolen from the Prasat Chen Temple[10].
  • Late June 2010: It seems that Emma Bunker changed her opinion on the Statue’s sale following her trip to Cambodia[11]. In another email, she advised that Sotheby’s could go ahead with the sale because “it did not appear as if Cambodia, as a general practice, was requesting the return of looted Cambodian art and artifacts”[12].
  • 8 November 2010: Sotheby’s sent a communication to the Ministry of Culture in Cambodia via email informing the government that it was offering the Statue for sale in its March 2011 auction in New York[13]. The Ministry of Culture did not reply to this email[14].
  • 2011: The Statue appeared on the cover of the auction catalogue[15]. It was estimated between US$2-3 million[16].
  • 24 March 2011: On the auction day, the Secretary General of the Cambodian National Commission for UNESCO requested from Sotheby’s to withdraw the Statue from the auction and to facilitate its return to Cambodia[17]. Sotheby’s consented to withdraw the Statue from the auction, but retained its possession, presumably awaiting that the question of ownership was resolved[18].
  • Late 2011 or early 2012: Cambodia asked the United States (U.S.) to assist in the Statue’s recovery. Thereupon, the U.S. Department of Homeland Security opened an investigation on the Statue’s alleged theft and its import to the United States[19]. Meanwhile, the Cambodian government entered into negotiations with Sotheby’s for a private purchase[20]. Istvan Zelnik, a former Hungarian diplomat and collector, was interested in buying the Statue for US$1 million and in donating it to Cambodia[21]. The purchase did not occur.
  • 4 April 2012: Based on the gathered evidence, the U.S. government filed an action for the Statue’s forfeiture in the New York Southern District Court (hereafter Court)[22]. It believed that the Statue was, among other things, illegally imported to the U.S.[23].
  • 5 April 2012: The Court issued a restraining order “prohibiting Sotheby’s from transferring or otherwise disposing of the Statue”[24].
  • 2012-2013: Sotheby’s and Ms. Ruspoli (hereafter Claimants) asked the Court to dismiss the complaint. Meanwhile, the U.S. government proposed to submit an amended complaint which included new facts collected during the ongoing investigation[25].
  • 28 March 2013: The Court accepted the U.S. government’s amended complaint and rejected the Claimants’ motion to dismiss[26].
  • 12 December 2013: The U.S. government and the Claimants signed an agreement to terminate the dispute. The Claimants agreed to return the Statue to Cambodia[27].

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II. Dispute Resolution Process

Negotiation – Ad hoc facilitator (Cambodian National Commission for UNESCO, private collector) – Judicial claim – Settlement agreement

  • The Cambodian National Commission for UNESCO (hereafter National Commission) made an official request for the Statue’s return on Cambodia’s behalf[28]. The National Commission’s involvement suggests that the Cambodian State sought the support of third parties such as UNESCO in the recovery process.
  • Upon their request, Sotheby’s withdrew the Statue from the auction[29]. It seems that at first, Cambodia did not approach Sotheby’s or Ms. Ruspoli to negotiate the Statue’s return. Neither did Cambodia bring a claim before the U.S. courts based on its ownership title. Instead, Cambodia asked for the U.S. government’s help by examining the Statue’s rightful import. Sotheby’s had imported the Statue into the United States and it was held in New York ever since. Cambodia believed that Sotheby’s had knowingly imported a stolen good and kept it in its possession, both actions prohibited by U.S. law as described below. As a result, the U.S. government commenced its investigation upon the Statue’s import.
  • Meanwhile, a Hungarian collector, Istvan Zelnik, offered Cambodia to purchase the Statue and to donate it to the Cambodian State[30]. Thereupon, Cambodia entered into negotiations with Sotheby’s for the sale of the Statue to the private collector. UNESCO assisted Cambodia again in the negotiations, this time through its field office in Phnom Penh[31]. Istvan Zelnik offered US$1 million to Sotheby’s, almost half of Sotheby’s low estimate price as stipulated in the auction catalogue. Presumably, the parties could not agree on the price which is why the negotiations failed.
  • Cambodia had another chance to recover the Statue when the U.S. government, following its investigation, decided to bring a forfeiture action against the Statue. Under U.S. law, forfeiture actions are brought against a particular property and result in the transfer of title to the U.S. government[32]. In cases where the forfeited object is a cultural property, the U.S. government usually returns the object to its rightful owner, which can be a State like Cambodia in this case[33]. Therefore, it seems that U.S. forfeiture laws allowed Cambodia to claim ownership over the Statue, without filing a claim for restitution.
  • Ultimately, after a year and a half of pre-trial proceedings, the U.S. government and the Claimants negotiated an out-of-court settlement.

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III. Legal Issues

Criminal offence – Ownership

  • The U.S. government claimed for the Statue’s forfeiture under three different federal statutes which all require an “underlying violation” of the National Stolen Property Act (NSPA)[34]. Accordingly, the U.S. government made three major assertions: (1) that the Statue was stolen; (2) that the Statue remained stolen at the time it was imported into the U.S.; and (3) that the Claimants knew the Statue was stolen.
    • (1) To support its claim related to the theft, the U.S. government quoted several provisions of Cambodian law (in particular two decrees adopted under the rule of French Indochina) according to which the Statue has been state property, at least, since 1900[35]. According to the Schultz case, such provisions vesting ownership to a State should also be clear and unambiguous for the State to succeed in the recovery of stolen objects in U.S. courts[36]. The Court did not deal with this issue, considering that it should be resolved at the trial stage with the aid of expert testimony or other evidence. It held that the literal translation of the decrees from French into English demonstrated a reasonable basis to proceed with the case[37].
    • (2) Regarding the U.S. government’s second assertion, the Claimants argued that Cambodia had lost its ownership over the Statue at the time of the import because Mr. Ruspoli, Ms. Ruspoli’s husband, had acquired title to the Statue in good faith under British law in 1975[38]. Firstly, the Court pointed out that the Claimants failed to discuss the question of the law applicable to the 1975 sale[39]. Secondly, in case British law would apply to the 1975 sale, the Court reminded that good faith was not presumed under British law. Hence, the Claimants would bear the burden to prove that Mr. Ruspoli acquired the Statue in good faith to invoke that “his good faith purchase extinguished the right of [the] original owner”[40]. As a consequence, the Court did not retain the Claimants’ second assertion at the given stage.
    • (3) As for Sotheby’s knowledge of the theft, the Court found the facts cited by the U.S. government sufficient at that stage. The U.S. government drew attention, in particular, to Sotheby’s extensive expertise in Khmer art, to the inaccurate provenance information of the Statue in the catalogue and to the correspondence between Sotheby’s and Emma Bunker regarding the Statue’s provenance. Moreover, the U.S. government alleged that Sotheby’s had also been in contact with the collector who sold the Statue to Mr. Ruspoli in the first place, prior to the import and knew that he was the original seller of the Statue[41].
  • It is important to note that the Court did not decide on any of these assertions because the dispute was settled pre-trial[42].
  • The U.S. government and Cambodia signed a bilateral agreement in 2003 (renewed in 2008 and 2013) to restrict the import of certain categories of Cambodian cultural property into the United States[43]. Since the Statue was removed from Koh Ker before the adoption of these non-retroactive measures, they could not apply in this case.

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IV. Adopted Solution

Unconditional restitution

  • Before the Court rendered its decision, the Claimants decided voluntarily to return the Statue to Cambodia[44]. Dr. Sok An, Cambodia’s Deputy Prime Minister, received the Statue on 7 May 2014 in New York[45].

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V. Comment

  • The parties’ ultimate willingness to settle the dispute may be explained by different considerations. To begin with, the Claimants publicly affirmed that they consented to return the Statue “in the interests of promoting cooperation and collaboration with respect to cultural heritage”[46]. Aside from the parties’ official statement, it may be assumed that further, more compelling reasons led to the restitution agreement. Firstly, both parties have agreed on the fact that further litigation “would be burdensome” since the case involved issues that concerned the laws of different nations such as the United States, Cambodia, and the French colonies. Secondly, the parties acknowledged that the evidence gathered by the U.S. government and disclosed in the given stage of the case played a role in their decision to settle[47]. It may be argued that having seen the evidence, the Claimants may have decided to avoid the risk of losing at trial, for instance to protect their reputation. In fact, certain risks which were negligible in the beginning of the legal proceedings can become more tangible once the courts are ruling on the dispute. As a consequence, the parties can be compelled to settle their case before the courts reach their verdict[48].
  • While Cambodia received very positively the news of the Statue’s return, others have raised certain criticism regarding the course of action endorsed by Sotheby’s. The journalist Jason Felch asks why Sotheby’s chose to bring the case to court and fought together with Ms. Ruspoli when it had the opportunity, first, to accept Istvan Zelnik’s offer and second, to simply let Ms. Ruspoli to decide over the Statue’s faith. According to Felch, Sotheby’s may have had a vested interest in the Statue, for instance because it partially owned it. Felch notes that a vested interest could explain why Sotheby’s was actively engaged in the resolution of the issue during the whole process[49]. Nevertheless, Sotheby’s considers its approach to the dispute resolution process as “one of responsible and ethical market behavior and international cooperation between private and public entities”[50].
  • The case’s findings contributed to the investigations on a major trafficking network of Khmer antiquities[51]. Tess Davis, an archaeologist and a lawyer, explains that during the civil war and the Khmer Rouge rule (1975-1979), the Khmer Rouge and other groups were selling cultural objects removed from ancient sites to the international market to finance their paramilitary activities[52]. Thanks to this case, the attention shifted to other known Khmer antiquities displayed in museums or held in private collections that may have left Cambodia during this time[53]. One statue displayed in the Norton Simon Museum in Pasadena is of particular importance. This statue called “Bhima” is the identical pair of the disputed Statue in this case. The two statues, representing two enemies from a Hindu epic, were originally facing each other near the entry to the western pavilion of Prasat Chen Temple[54]. Around the time of the Statue’s return by Sotheby’s, the Norton Simon Museum decided to give back to Cambodia the other pair. It is interesting that Cambodian government has been asking for this statue’s return for a year[55]. Around the same time, a third Khmer statue, sold to a private collector by Christie’s in 2009, was also returned to Cambodia. In this case, Christie’s acted as a facilitator between Cambodia and the private collector[56]. Thereby five very important works of Khmer art, together those returned in May 2013 by the Metropolitan Museum of Art in New York[57], have been repatriated to Cambodia in the course of a year.

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VI. Sources

a. Bibliography

  • Gerstenblith, Patty. “Enforcement by Domestic Courts: Criminal Law and Forfeiture in the Recovery of Cultural Objects.” In Enforcing International Cultural Heritage Law, edited by Francesco Francioni and James Gordley, 150-174. Oxford: Oxford University Press, 2013.

 

b. Court decisions

 

c. Legislation

  • National Stolen Property Act, U.S. Code Title 18 (Crimes and Criminal Procedure), Sections 2314 and 2315.

 

d. Media

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[1] United States of America v. A 10th Century Cambodian Sandstone Sculpture, Currently Located at Sotheby’s in New York, New York, Verified Complaint, 12 Civ. 2600 (GBD), April 2, 2012 (hereafter Verified Complaint), § 14, accessed June 30, 2014, http://fr.scribd.com/doc/88039322/U-S-v-10th-Century-Cambodian-Sculpture-12-Civ-2600; United States of America v. A 10th Century Cambodian Sandstone Sculpture, Currently Located at Sotheby’s in New York, New York, No. 12-cv-2600-GBD (S.D.N.Y. March 28, 2013) (hereafter Memorandum Decision), 3-4, accessed June 30, 2014, http://www.nysd.uscourts.gov/cases/show.php?db=special&id=282.

[2] Verified Complaint, § 10. The Statue is also called “Khmer Athlete”. See Sotheby’s Press Release New York, “Indian & Southeast Asian Works of Art at Sotheby’s New York, Auction: 24 March 2011,” accessed June 30, 2014, http://files.shareholder.com/downloads/BID/1707765638x0x448966/8d383acb-5d7f-4f39-9bc2-9142712aed2d/448966.pdf.

[3] Memorandum Decision, 4.

[4] Ibid. Jason Felch reveals the name of the Bangkok dealer as Douglas Latchford. See Jason Felch, “Blood Antiquities: After Lengthy Fight, Sotheby’s Agrees to Return Looted Khmer Statue,” Chasing Aphrodite, December 16, 2013, accessed June 30, 2014, http://chasingaphrodite.com/2013/12/16/blood-antiquities-after-lengthy-fight-sothebys-agrees-to-return-looted-khmer-statue/.

[5] Verified Complaint § 15d; Memorandum Decision, 4. According to Tom Mashberg and Ralph Blumenthal, the British auction house in question was “Spink&Son” in London that Christie’s acquired in 1993. See Tom Mashberg and Ralph Blumenthal, “Mythic Warrior Is Captive in Global Art Conflict,” The New York Times, February 28, 2012, accessed June 30, 2014, http://www.nytimes.com/2012/02/29/arts/design/sothebys-caught-in-dispute-over-prized-cambodian-statue.html?pagewanted=all&_r=0.

[6] Memorandum Decision, 4.

[7] Verified Complaint, § 16.

[8] Ibid., § 22.

[9] Ibid., § 24. According to Jason Felch, Emma Bunker was a close associate of the Bangkok dealer Douglas Latchford. See Felch, “Blood Antiquities.”

[10] Verified Complaint, § 24. The connection between the Statue and its pedestal at Prasat Chen was first made in 2007 by a stone conservator. He compared the pedestal and a photograph of the Statue published in the book “Adoration and Glory: The Golden Age of Khmer Art” by Emma Bunker and Douglas Latchford and concluded that they matched. At that time, the whereabouts of the Statue was unknown. See Jason Felch, “Rebuilding Koh Ker: A 3D Reconstruction Restores Context to a Looted Khmer Temple,” Chasing Aphrodite, April 10, 2014, accessed June 30, 2014, http://chasingaphrodite.com/2014/04/10/rebuilding-koh-ker-a-3d-reconstruction-restores-context-to-a-looted-khmer-temple/; Verified Complaint, §§10-12.

[11] Ibid., § 26.

[12] Memorandum Decision, 5.

[13] Ibid., 6.

[14] Ibid.

[15] Verified Complaint, § 32.

[16] See above, footnote 2 for Sotheby’s Press Release New York.

[17] Memorandum Decision, 6. Eric Bourdonneau, a French archeologist who worked in Koh Ker, explains that one week prior to the sale, he recognized the Statue as being the Duryodhana missing at Prasat Chen and immediately sent a report to the UNESCO field office in Phnom Penh with photographs and an iconographical demonstration. He was told that the report was transmitted to the Ministry of Culture in Cambodia. See Felch, “Rebuilding Koh Ker.”

[18] Ibid. See also below, footnote 29.

[19] See Mashberg and Blumenthal, “Mythic Warrior Is Captive in Global Art Conflict.”

[20] Ibid.

[21] Ibid.

[22] Verified Complaint, § 42-50; Memorandum Decision, 1.

[23] See below, footnote 34.

[24] United States of America v. A 10th Century Cambodian Sandstone Sculpture, Currently Located at Sotheby’s in New York, New York, Stipulation and Order of Settlement, 12 Civ. 2600 (GBD), December 12, 2013 (hereafter Order of Settlement), 1, accessed June 30, 2014, http://fr.scribd.com/doc/191273261/Sotheby-s-Stipulation?secret_password=2lzxw7fmzhopqd0rynmi.

[25] Memorandum Decision, 2.

[26] Ibid., 18.

[27] Order of Settlement, 2.

[28] National commissions for UNESCO are part of the international organization and act in advisory capacity to the states. See articles 7.1 and 7.2 of the Constitution of UNESCO, accessed June 30, 2014, http://portal.unesco.org/en/ev.php-URL_ID=15244&URL_DO=DO_TOPIC&URL_SECTION=201.html.

[29] In practice, Sotheby’s applies certain conditions of business to each auction. According to these conditions, Sotheby’s may withdraw any property from the sale following an opposition formulated by a third party. Sotheby’s may keep the contested property until it considers the issue resolved. The conditions of business may vary from one auction to another and from one country to another. See for example, the conditions of business applied to the auctions held in France, accessed June 30, 2014, http://www.sothebys.com/content/dam/sothebys/PDFs/cob/PF1223-COSfrench.pdf.

[30] Third parties may sometimes intervene in the resolution of cultural property disputes by proposing to purchase the disputed object in order to return it to the requesting party. See for example, Alessandro Chechi, Anne Laure Bandle, Marc-André Renold, “Case Afo-A-Kom – Furman Gallery and Kom people,” Platform ArThemis (http://unige.ch/art-adr), Art-Law Centre, University of Geneva.

[31] See Mashberg and Blumenthal, “Mythic Warrior Is Captive in Global Art Conflict.”

[32] Patty Gerstenblith, “Enforcement by Domestic Courts: Criminal Law and Forfeiture in the Recovery of Cultural Objects,” in Enforcing International Cultural Heritage Law, ed. Francesco Francioni and James Gordley (Oxford: Oxford University Press, 2013), 165.

[33] Ibid.

[34] Memorandum Decision, 11. The Sections 18 U.S.C. 2314 and 2315 constitute together the NSPA. Section 2314 prohibits the transport “in interstate or foreign commerce any goods … of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud.” As for Section 2315, it prohibits the receipt or possession of “any goods … of the value of $5,000 or more, … which have crossed a State or United States boundary after being stolen, unlawfully converted, or taken, knowing the same to have been stolen, unlawfully converted, or taken.” U.S. Government Printing Office, Federal Digital System, accessed June 30, 2014, http://www.gpo.gov/fdsys/pkg/USCODE-2006-title18/html/USCODE-2006-title18-partI-chap113-sec2314.htm.

[35] Memorandum Decision, 13. See also the Verified Complaint, §§ 34-41.

[36] United States v. Schultz, 333 F.2d 393 (2d Cir. 2003). See Alessandro Chechi, Anne Laure Bandle, Marc-André Renold, “Case Egyptian Archaeological Objects – United States v. Frederick Schultz,” Platform ArThemis (http://unige.ch/art-adr), Art-Law Centre, University of Geneva.

[37] Memorandum Decision, 14.

[38] Ibid., 15.

[39] Ibid., footnote 6, 16.

[40] Ibid., 16.

[41] Ibid., 17-18.

[42] Ibid., 12-18.

[43] An emergency import restriction on Khmer stone statues was already into force in 1999. This regulation was integrated into the bilateral agreement signed in 2003. U.S. Department of State’s Bureau of Educational and Cultural Affairs, accessed June 30, 2014, http://eca.state.gov/cultural-heritage-center/cultural-property-protection/bilateral-agreements/cambodia.

[44] Order of Settlement, 2.

[45] See Ek Madra, “Fate of A Statue: The Case of the Duryodhana,” Khmer Times, May 8, 2014, accessed June 30, 2014, http://www.khmertimeskh.com/news/1303/fate-of-a-statue--the-case-of-the-duryodhana/.

[46] Order of Settlement, 2.

[47] Ibid.

[48] Such an effect of a legal action is common in the context of cultural property disputes. See for example, Ece Velioglu, Alessandro Chechi, Marc-André Renold, “Case Elmali Hoard – Turkey and OKS Partners,” Platform ArThemis (http://unige.ch/art-adr), Art-Law Centre, University of Geneva.

[49] See Felch, “Blood Antiquities.”

[50] See Mashberg and Blumenthal, “Mythic Warrior Is Captive in Global Art Conflict.”

[51] Ibid.

[52] See Tess Davis, “Cambodia's looted treasures,” Los Angeles Times, April 25, 2012, accessed June 30, 2014, http://articles.latimes.com/2012/apr/25/opinion/la-oe-adv-davis-khmer-loot-sothebys-20120425.

[53] See Felch, “Blood Antiquities.”

[54] Memorandum Decision, 2. The connection between the Bhima statue and its pedestal was also made in 2007 by the same stone conservator and later confirmed by the French archeologist Eric Bourdonneau. Verified Complaint, § 10-12.

[55] See Tom Mashberg and Ralph Blumenthal, “Christie’s to Return Cambodian Statue,” International New York Times, May 6, 2013, accessed June 30, 2014, http://www.nytimes.com/2014/05/07/arts/design/christies-to-return-cambodian-statue.html?_r=0.

[56] Ibid.

[57] See Tom Mashberg and Ralph Blumenthal, “The Met Will Return a Pair of Statues to Cambodia,” International New York Times, May 3, 2013, accessed June 30, 2014, http://www.nytimes.com/2013/05/04/arts/design/the-met-to-return-statues-to-cambodia.html?pagewanted=all&_r=0; Felch, “Rebuilding Koh Ker.”

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