Immunity and WWII Spoliation

Via the invaluable Museum Security Network I saw today that Marilyn Henry of Forward has an interesting overview of the Malevich litigation pending in Federal Court in Washington D.C. It implicates many of the ideas I talk about in my forthcoming article to be published this fall in the Cardozo Arts and Entertainment Law Journal, Why Federal Criminal Penalties for Dealing in Illicit Cultural Property are Ineffective and a Pragmatic Alternative available on SSRN.

Here is an excerpt of Henry’s article:

A lawsuit over ownership of 14 paintings by Russian artist Kazimir Malevich is currently pending in federal court in Washington. The case is complex, but this much seems certain: The court’s ruling will strongly influence whether American courts remain open to claims for Nazi-looted artworks being held by European museums.

A major issue in the Malevich lawsuit is the American government’s grant of immunity from seizure. It is one of two federal measures, one legal and one financial, that promote international cultural exchange.

The government’s goal is certainly commendable, but in the interest of cultural exchange it effectively allows the rights of victims of art theft or expropriation to be overridden. Taken together, the two measures create the bizarre scenario of the American government subsidizing the exhibition of misappropriated or looted art at American museums while barring victims from filing claims in American courts for these artworks.

There is nothing sinister in the measures’ intent, which help museums enormously. The federal legal protection and financial support for international loans enables them to mount shows that are culturally significant and often reap substantial economic benefits for the museum’s home city. The Metropolitan Museum of Art, for instance, said two recent exhibitions — “Cézanne to Picasso: Ambroise Vollard, Patron of the Avant-Garde,” and “Americans in Paris, 1860-1900” — generated $377 million for New York.

Those exhibitions were made possible, in part, by immunity from judicial seizure issued by the State Department, and a federal indemnity that insures artworks and artifacts against loss or damage while in transit and on loan for exhibition in the United States.

The immunity from judicial seizure assures foreign institutions that artworks lent to the United States will be returned. It dates from 1965, when foreign lenders, primarily in the Soviet Union, feared that the objects could be seized as payment for court judgments or held as collateral for commercial debts. That happened in 2005, when officials at the Swiss border briefly impounded masterpieces from the Pushkin Museum as payment against the Russian government’s debt to a Swiss company.

Of course the City of Amsterdam and the Stedelijk Museum don’t want to part with the works because they don’t feel they’ve done anything wrong. I don’t know too much about this case but here’s what I’ve gathered. The Stedelijk Museum was sued in federal court in Washington D.C. by 35 descendants of the Russian artist Kazimir Malevich. At issue are 14 Malevich works.

The Stedelijk Museum probably acquired the works in 1958 from a German architect named Hugo Haring. Some allege Haring didn’t really own the paintings; and the ownership documents he provided to the museum had been forged so he could sell the paintings to the museum.

In 1927 Malevich brought the paintings to Germany for an exhibition, but entrusted them to a group of German artist friends when he was forced to return abruptly to the Soviet Union where he died without being able to reclaim them. The three friends of Malevich who were holding the paintings either died or fled, leaving the works in the control of the architect Haring. He may have hidden the paintings until after the war, when he came in contact with prospective buyers from the Stedelijk Museum.

Malevich’s descendants did not bring claim to the paintings until after the fall of the Soviet Union. They initiated their lawsuit in US federal court in January 2004 when the paintings arrived in the United States for an exhibition. Like Maria Altmann, the Malevich heirs are basing their claim on the Foreign Sovereign Immunities Act (FSIA).

The dispute is ongoing. It’s an interesting case, and the natural consequence of the favorable standing many claimants enjoy in American courts. The drawback of course is it will be more difficult for American museums to loan works of art, especially if claimants wait to publish their claim until the works are on display in the US, and then announce their claim.

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One thought on “Immunity and WWII Spoliation”

  1. Dear Mr. Fincham,

    You have no doubt followed the recent spate between Russia and the UK over the loan to the Royal Academy of a collection of artwork in the present possession of Russian museums. Russia had said it would not send the paintings unless the UK guaranteed they would be immune from seizure from the heirs to Mr. Schukin from whom the paintings were plundered, according to his heirs, by the Bolsheviks in 1917.

    The UK has now acted to mollify the Russians by moving forward some specific legislation which will in effect give protection to Russia and in the process strip Mr. Schukin’s heirs with any chance of making good on their claim.

    Contrary to the Malevich litigation, the present “owner” of the artwork (Russia) is the very body which committed the alleged plundering.

    It is therefore, in my view, particularly shocking to see the UK government flattening the rights of the violated in the sole interest of the violator.

    As one of 316.000 individual holders of defaulted Russian bonds worth over US$90 billion (yes, despite its claims to the contrary Russia is still in default today) who are constantly up against what we perceive to be governmental collusio to thwart any attempt at making good on our bona fide claims, as are American holders of defaulted Chinese bonds, I am particularly sensitive to the effforts of Mr. Shukin’s heirs, and I hope you will post my article below, despite its slightly inflamatory tone.



    Is it normal to tread on the possible legitimate rights of bona fide creditors in the sacred name of art?

    If this is done to preserve “the rights of HM’s subjects” to access fine works of art, should HM’s government not compensate bona fide creditors who in the process are deprived of any chance of making good on their claims?

    The Russians were rightfully worried that paintings they allegedly “seized” (in your and my language that simply means plundered) from private interests in 1917 might today be seized by (in your and my language that simply means returned to) heirs of their rightful owner if they sent them to a temporary exhibition in the UK.

    In order to mollify the Russians, the UK has finally agreed to rush forward a piece of legislation giving immunity from seizure to foreign works of art while temporarily in the UK.

    How can HM’s government kowtow to Russia’s government and announce that normal rule of law will be waived in this particular case, thus depriving the (allegedly) rightful owners of making good on their claim?

    Does HM’s government have no confidence in its own law to establish who the rightful owner is?

    Has HM’s government given up on contract enforcement and rule of law?

    How crooked must the Russian government be to seek waivers from foreign laws lest one of its innumerable unpaid creditors file a claim anytime Russian assets are let out of its boundaries?

    How crooked must a host country’s government be to enact a general law on the basis of one individual case, with the specific aim of depriving possibly legitimate claimants from any chance of lawfully making good on their claims?

    Are we in Sicily?

    The UK government’s grovelling attitude just serves to show how right the Russians are to throw their weight about. All of us in the West can now expect more of the same! Well done!

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