|One of the Nazi-era works at issue in Malewicz, titled Suprematism 18th Construction, by Kazimir Malevich|
Legislation which would have an impact on the lending of foreign artworks is currently moving through both the House and the Senate. The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act would remedy an inconsistency between two laws. The first act, the Immunity from Seizure Act bars suits which infringe on the custody or control of a museum while they are loaning the work of art. The other act, the Foreign Sovereign Immunity Act has opened the door for some claims, even when immunity has been granted under the Immunity from Seizure Act.
Two recent cases which highlight this are Magness v. Russian Federation, and Malewicz v. City of Amsterdam. In both those cases suits for the monetary value of the paintings were allowed to continue, despite the fact that they had been granted federal immunity. The proposed law seems to be a sound and reasonable accommodation for the recent conflict between these two statutes. However some have claimed that this would preclude certain claims in Federal Court. This strikes me as troubling because the State Department hears a request for immunity and the parties have to provide detailed information about the history of the loaned works. The implication is that the State Department is not thoroughly vetting these requests, and that when the works arrive in the United States unsuspecting lending museums, who may have been unaware they had a work of art subject to a claim, may be hauled into court, after they were given guarantees that this wouldn’t happen. A grant of immunity is issued by the State Department, which has the responsibility for checking that there is no potential claim to the work of art. I find it curious that many of the same groups expressing anxiety about the clarification (like the LCCHP here in this brief press release) advocate for State Department involvement in US import restrictions via the Cultural Property Advisory Panel. It seems to me that if we entrust the State Department with regulating imposition of import restrictions, why are they unable to research the history of an object entering the US for a temporary loan. And for me that makes bad law and bad policy. Foreign lenders perhaps should give up title to some of these contested objects, but claimants waiting in the wings and springing a lawsuit on a lending museum will lead to fewer art loans, and will end up limiting those temporary exhibitions anyway. What we have is a cultural embargo on works of art which may be the subject of a Nazi-era claim.
Art is a good ambassador, and the exchange of art is an admirable goal. Aggressive repatriation litigation, particularly after a foreign museum has been told it will not be sued in Federal Court, by the State Department, sets a troubling precedent and will certainly restrict number and quality of works of art museum visitors will see in loaned exhibitions. Remedying Holocaust-era wrongs is a worthy goal, but piercing immunity produces uncertainty for museums and current possessors of art. A better system would negotiate and recommend returns or compensation via something like the Spoliation Advisory Panel in the United Kingdom. Most interesting of all, the proposed clarification does not even attempt to remedy potential difficulties with Nazi-era disputes which arose between 1933-1945. Holocaust-era claims gained in number in the 1990’s with a number of important efforts and writers focusing attention on the issue. It is an example that many museum-goers are aware of. We all know the Nazi’s looted art and forced victims into selling or leaving behind their art collections. The legal precedents created in holocaust-era claims also can be applied to other periods of taking like the Bolshevik Revolution and the Cambodian conflict, and in fact we are seeing courts examine the taking of objects during those periods as well. The Holocaust repatriation movement has the benefit of a growing number of advocates who are actively networking with repatriation attorneys, auction houses, and art historians to aggressively pursue claims. However the cost of this litigation is restricted movement of art, and increasing silence on the part of museums in Europe and North America. Holocaust victims should have their rights vindicated, but a courtroom adversarial process is not always the best remedy for past injustices.