Happy new year to all ! For the first 2017 blog post, I decide to go beyond Paris (and France), I chose an international topic : a US recently passed bill. I am back to basics and to the main core of the blog : law and art.
Relationship between the United States and the rest of the world tends to be fluctuant, even if law is part of the game. As an example, let’s talk about the foreign state’s sovereign immunity from the federal or states’ jurisdiction.
The 15th of December 2016, the US Congress (made up of the Senate and the U.S. House of Representatives) has approuved a bill concerning works of art within the context of international relations. This bill, « The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act » (or the FCEJCA for acronyms lovers) protects works of art from seizure and US jurisdiction, while on loan for temporary exhibitions in the United States.
To be very clear : the law is supposed to provide a higher level of immunity which protects foreign works of art, on loan to American museums, from lawsuits. Those works cannot be confiscated and don’t belong to the US courts jurisidiction: the foreign state’s sovereign immunity remains.
What is the scope of the FCEJCA ?
Importing artworks into the US, for a temporary exhibition or display is not a commercial activity (within the meaning of the expropriation exception in the FSIA), hence those artworks are immuned from seizure and from the US courts jurisdiction.
NB: the law deletes one exception which happened to the Russian painter Kazimir Malevitch’s heirs. If the loan of the artwork constitues a commercial activity, the sovereign immunity remains. I will develop later.
Which criteria must be fulfilled by the artworks to be protected from seizure?
- the works on loane are in the US territory for a temporary exhibition or display
- the foreign state must be the owner or the custodian of the artwork
- the President must have determined that the work is of cultural significance
- the temporary exhibition or display must be in the national interest
Legal protections already do exist for art loans from foreign countries, notwhithstanding museums expected a higher level of safeguard. Indeed, since a federal court ruled in a 2005 case, those protections can prevent seizures but they do not block claimants from filing lawsuits to recover artworks with unclear sources.
The « The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act » follows a court decision from 06/27/2007: the Malevitch case. For your information, in 2003, the City of Amsterdam’s Stedelijk Museum loans paintings by the Russian painter Malevitch to the Guggenheim Museum in New York and the Menil Collection in Houston, Texas. During the exhibition of those paintings, Malevitch’s heirs fills a suit against the museum. They allege that the museum’s acquisition of the paintings is illegal. Thanks to many elements (such as a signed agreement between the US and the city of Amsterdam, the compensation for the loan of the paintings, and the employees sent to the U.S.), the district court hold that the loan of paintings is a commercial activity and the heirs are allowed to suit the museum.
Since the 12/15/2016, a particular version of this exception, (that happened to Malevicth’s Heirs and described just above) does not exist anymore. If the sovereign defendant’s only commercial activity is the loan of the artwork that has been granted immunity from seizure, then sovereign immunity remains and the defendant cannot be sued in U.S. courts.
According to many museum directors, those two decisions has an important and disuasive impact on the museum world. Foreign governments are reluctant to loan their art collection to U.S. They fear that they will not get back their art. Will the The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act help cultural exchanges ?
This bill amends the Foreign Sovereign Immunities Act (known as the FSIA) in the 28 U.S. Consitution, section 1 605. Indeed, the bill amends but also clarifies the exception to foreign sovereign immunity, since under the new law, foreign nations can be suit in U.S. courts.
The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act is an exception to the « expropriation exception » in Foreing Sovereign Immunity Act (FSIA). The FSIA explicites when a foreign sovereign nation may be sued in U.S. courts (federal or state court). Under the FSIA law (enacted in 1976), a foreign country cannot be sued in U.S. courts except from a few specific exceptions. One of those exceptions is the expropriation exception. It applies to situations in which a foreign government has nationalized privately owned property. According to the expropriation exception, if a foreign state has nationalized a private property, lawsuit against this foreign government is allowed.
There is a first criterion to fulfill : a commercial activity carried on in the United States by the foreign state. In addition, the expropriation exception (cf section 1605 of the FSIA) allows suits if it concerns rights in property taken in violation of international law. 2 criteria must be fulfilled : the foreign sovereign state is having a commercial activity in the United States and it violates the international lax. As a result, if these criteria are fulfilled the foreign state immunity is denied and the US courts have the jurisdiction.
The exceptions to this bill (FCEJCA):
We can spot 2 exceptions, which discrease a lot the protection from seizure. The bill denies the foreign state’s immunity in cases concerning:
- the nazi-era claims if it is alleged that the work was taken in violation of international law by Germany between 1933 and 1945
- the other culturally significant works if it is alleged that the work was taken in connection with the acts of a foreign government as part of a systematic campaign of coercive confiscation or misappropriation of works from members of a targeted and vulnerable group.
According this exception, those works of art belong to the US courts jurisdiction. But, in order to deny the foreign immunity and to allow a trial in the US, the court must proove that the activity associated with the exhibition is commercial. This criterion is mandatory for the U.S. court to exercise jurisdiction over the foreign state, owner of the artwork.
In my opinion, the first exception (concerning Nazi-era claims) covers a lot of cases since the nazi have been very active in art theft. But the law is not precise about the definition od the violation of international law.
The second exception (other culturally significant works) to the bill is a little unclear, and not so clarifiyng. Who decides if a work is culturally significant ? What are the criteria ? Which kind of artwork ? A lot of question are still unanswered.
What is this bill so controversial?
This legislation to safeguard international art loans in the US was voted up after many criticism and complaints. According to some, the bill amounts to protect plundered works of art. According to the opponents, if this law is signed by the President, it will forgive the loan of stolen or looted art. In addition, this bill wouldn’t allow the heirs of the legal owners from filing claims in US courts.
In addition, the opponents warn the real beneficiary would be Russia, because the Russian government has a lot of expropriated artworks considered as national treasures. Obviously, some of those artworks were nationalized during trouble times such as the end of World War II or during the Bolshevik Revolution (1917). For you information, Russia has blocked art loans to the United States since 2010, just after they lost a trial and that US requires that Russia gives back artworks to U.S. citizens. Since this decision, they fear their artworks could be seized and they stop cultural exchanges with the U.S.A.
In my opnion, I don’t agree with the opponents who think that the bill allows exhibitions of looted artworks because the bill doesn’t include the nazi-era claims. This exception covers a lot of cases even if the law is unclear and imprecise.
Even is the FCEJCA is considered as « controversial » it is unlikely to have an impact.
NB: President Obama has signed the bill the 16th of December