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Saturday, December 10, 2016

[UPDATED] Bipartisan Cultural Property Immunity Bill Passes the House Again

[UPDATE]: The President signed the bill described below into law on December 16, 2016.

[UPDATE 12/15/16]: HR 6477 passed the Senate by voice vote on December 10. It is now on the president's desk for signature or veto.

The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (FCEJICA) (HR 6477) is moving its way through Capitol Hill with broad bipartisan support. The bill passed the House on Thursday without objection. Now it goes to the Senate for consideration.

The legislation aims to reinforce the shield protecting foreign art on temporary loan to American museums from judicial action. International museum loans are a critical part of any solution that reduces looting and smuggling of archaeological artifacts.

The Senate Judiciary Committee passed its own version of the FCEJICA on September 15 (S. 3155). Its chief sponsor is Senator Orrin Hatch (R-UT), and the bill has nine Democratic and five Republican co-sponsors, including Senators Dick Durbin (D-IL), Dianne Feinstein (D-CA), Lindsey Graham (R-SC), Chuck Grassley (R-IA), and Chuck Schumer (D-NY). 

The chief sponsor of the House bill, Congressman Steve Chabot (R-OH-1), said in a statement this week, “This is simple, straightforward legislation. It clarifies the relationship between two conflicting statutes to encourage the foreign lending of art to the United States." "While this legislation makes a relatively minor change to existing law," Chabot noted that "it will, if enacted, provide enormous cultural benefits to the American people."

Prior versions of the FCEJICA have been proposed since 2012, and all have failed to become law. 

The current proposal amends the Foreign Sovereign Immunities Act (FSIA) so that culturally significant artwork imported by American museums for temporary exhibition would not be characterized as "commercial activity." This change is important because current federal law immunizes foreign nations from lawsuits except when they conduct commercial activity.

The judiciary expanded the meaning of "commercial activity" in the 2005 case of Malewicz v. City of Amsterdam when heirs of the artist Kazimir Malevich sued the City of Amsterdam, Netherlands to recover artwork that Amsterdam's Stedelijk Museum loaned to a pair of American museums. The plaintiffs alternatively requested $150 million in damages. The heirs claimed that the Stedelijk Museum obtained the artist's paintings unlawfully. Once they were on loan to US museums for exhibition, the plaintiffs sued in US federal court.

The City of Amsterdam argued that the Immunity from Seizure Act (IFSA)--not to be confused with the FSIA--protected it from suit because IFSA, officially called the Immunity from Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display (22 USC § 2459), shields foreign art from judicial seizure once the State Department grants a US museum's request to immunize the artwork, which happened in this case. But the Malewicz court ruled that the City of Amsterdam engaged in “commercial activity” under the FSIA. So while IFSA may have protected the artwork from being taken by the court to give to the claimants, the FSIA did not immunize the City of Amsterdam from paying money damages to the heirs. The FCEICA seeks to correct this result.

The latest version of the FCEJICA preserves the so-called "Nazi exception," which states in part
Nazi-era claims.--[Jurisdictional immunity] shall not apply in any case ... in which rights in property taken in violation of international law are in issue ... and the action is based upon a claim that such work was taken in connection with the acts of a covered government during the covered period [of January 30, 1933 through May 8, 1945]. 
Both the House and Senate proposals would erase the current conflict between IFSA and the FSIA, encouraging foreign lenders to supply art on temporary loan to US museums without fear of being sued. Foreign lenders need iron-clad notice that their loaned artworks, or that they themselves, will not be subject to expensive court proceedings simply because they agreed to donate objects for temporary display at US museums.

Meanwhile, the State Department should better scrutinize IFSA requests from museums, particularly in cases where looted antiquities or Nazi-era thefts are suspected, because it is not good public policy to mistakenly immunize illegally dug-up archaeology or stolen fine art.

Additional argument in favor of the FCEJICA appear in the April 2012 blog post titled The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (S.2212) Should Be Passed.

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.