The Grey Lady Reports on the proposed Immunity Clarification Act

The paper of record gets some reactions to the Immunity Clarification Act, which would remedy an inconsistency between the Immunity from Seizure Act and the Foreign Sovereign Immunity Act. I spoke with the reporter a number of weeks ago about the piece. I wrote a lengthy email discussing the law, and summarized recent cases which likely prompted the sponsors of the bill in the house and senate to act. I noted alternatives other nations have successfully used. Some of that made it into the piece, and of course the one part of the piece attributed to me was taken out of context:

 Derek Fincham, an assistant professor at South Texas College of Law in Houston who specializes in cultural heritage law, said the exclusion probably also reflected the notion that the bill would be difficult to pass without an exception for Holocaust-era claims.

“To put it bluntly, how many Cambodians donate to political campaigns?” he said. “All of this goes back to political influence on a money level, which is unfortunate.”        

The quote only speaks to a small part of my response to the question. I was asked why the thefts from a place like Cambodia might be treated differently in the proposed bill. I gave a number of other reasons for the Holocaust Era exception which runs from 1933-1945. I discussed the unique nature of the holocaust, the scope of the spoliation which occurred, and the Spoliation Advisory Panel in the United Kingdom which also treats the holocaust era in a unique way. I do think that cultural heritage policy, like any political decision, stems from political influence and a constituent group which makes itself known to its representatives, but that’s only one part of the equation.

As I told the reporter last month when we spoke, the new bill arises because of recent cases involving two acts of congress which conflict. The first act, the immunity from seizure act bars suits which have the effect of depriving a museum the custody or control of a work of art, lent by a museum. The other act of Congress, the Foreign Sovereign Immunities Act has been deemed to open a window for claims, even when immunity has been granted under the Immunity from Seizure Act. The two recent cases are Magness v. Russian Federation, and Malewicz v. City of Amsterdam. In both those cases suits for the value of the paintings were allowed to continue, despite the fact that they had been granted federal immunity.

Ultimately the State Department hears a request for immunity and the lender must provide information about the history of the loaned works. The State Department is not thoroughly vetting these requests, and rather than have an exception for this or that period of spoliation, the best solution would be to avoid giving a foreign lender immunity if there is a tainted history to the object.

Doreen Carvajal, Dispute Over Bill to Protect Art Lent to Museums, The New York Times, May 21, 2012, http://www.nytimes.com/2012/05/22/arts/design/dispute-over-bill-to-protect-art-lent-to-museums.html (last visited May 22, 2012).

Questions or Comments? Email me at derek.fincham@gmail.com

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