House Adopts The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act

The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act passed the House of Representatives late this afternoon. H.R. 889, which received broad bipartisan support by legislators in Congress, now goes to the Senate.

The committee report accompanying the legislation explained that "a provision in the Foreign Sovereign Immunities Act (FSIA) discourages foreign governments from lending government-owned artwork and objects of cultural significance to U.S. museums and educational institutions for temporary exhibition or display. Foreign governments are discouraged from such lending by the possibility that it will open them up to litigation in U.S. courts for which they would  otherwise be immune. This legislation fixes this problem by making a narrowly tailored change to FSIA."

The House adopted similar versions of the bill in the past, most recently in May 2014, but the bills failed to become law.

The CHL blog penned an argument in favor of this legislation in 2012.

The video below, courtesy of C-Span and clipped by CHL, shows today's floor debate.

 

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & Policy Research, Inc.

Assyria to Iberia Exhibition Highlights Legal and Public Policy Issues Surrounding Foreign Lending

The ancient Assyrian Empire and the Phoenician city-states fascinate museum-goers. But when visitors view Assyria to Iberia at the Dawn of the Classical Age in New York this September, few will be aware of the legal and public policy issues surrounding the Metropolitan Museum of Art’s exhibition. Two are worth highlighting.

On the legal front, the museum secured immunity from judicial seizure of the objects on temporary loan.

The Met billsthe show as a “landmark exhibition," which will present "some 260 works of art on loan" that have been “brought together from some four dozen museums in 13 countries.” That's why this immunity is important: it protects the artifacts from potential legal entanglements when they are inside America’s borders.

The U.S. State Department published its decision to grant immunity on July 10.

Congress passed a statute in 1965 called IFSA, the Immunity from Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display 22 USC § 2459. Lawmakers wrote the statute to promote imports of fine art, making foreign art lenders feel confident that their cultural works would not be taken away as a result of any U.S. court action.

The statute protects objects of cultural significance intended for temporary, nonprofit exhibition. The law also prevents a civil litigant from seizing temporarily imported fine art that might satisfy a judgment in a lawsuit.

(For a discussion of the current controversy surrounding the IFSA statute and a congressional attempt to resolve the problem, see earlier CHL posts here and here.)

The immunity given by IFSA is not automatic, which is why the Met petitioned the State Department. That is the federal agency responsible for reviewing immunity requests. The State Department granted the Met’s request because the agency found--as required by the statute--that (1) the objects included in Assyria to Iberia qualify as objects of cultural significance, (2) they were imported pursuant to loan agreements with foreign owners or custodians, and (3) will be displayed by a museum in the national interest.

The immunity covers the specific artifacts on loan to the Met; it does not give the institution itself immunity from possible lawsuits.

The kind of foreign lending encouraged by IFSA and by exhibitions like Assyria to Iberia support the wider policy goals associated with cultural exchanges of artifacts. Foreign lending of heritage objects enlightens minds and hearts. Foreign lending also offers a possible solution to the problem of transnational antiquities trafficking by increasing exchanges between reputable cultural and archaeological institutions, thereby decreasing American museum accessions of undocumented artifacts from the often opaqueart and antiquities market.

On the public policy front, Assyria to Iberia serves to support smaller cultural heritage centers like Almuñecar, Spain. Euro Weekly News reported that the Met asked the cultural heritage department for its Apofis vase and two onyx marble vases that were discovered from nearby archaeological sites. Olga Ruano, Councilor for Culture of the town was quoted as saying “Our cultural heritage attracts prestigious institutions, so it is our duty to protect, preserve and promote it.”

If you visit Assyria to Iberia at the Dawn of the Classical Age later this year, keep the law and public policy issues in mind, which form the backdrop.

Photo: Alex Bruda

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.

UPDATED > Back Again: H.R. 4292, The Foreign Cultural Exchange Immunity Clarification Act

[UPDATED 3/7/15: The  Foreign Cultural Exchange Immunity Clarification Act (H.R. 889) has been introduced again in 2015, during the 114th session of Congress.]

First adopted by the U.S. House of Representative in 2012 and then left to die in the Senate, the Foreign Cultural Exchange Immunity Clarification Act (FCEICA) is back, having been reintroduced by the three original sponsors along with a new co-sponsor.

CHL supported the bill the last time it made its way to Capitol Hill and recommended modifications that would help to bolster the State Department's review of IFSA requests. CHL once again supports the legislation.

Judiciary Committee member Rep. Steve Chabot (R-OH) introduced H.R. 4292 on March 25 along with co-sponsors Rep. John Conyers (D-MI), Rep. Bob Goodlatte (R-VA), and Rep. Steve Cohen (D-TX). Their purpose is to amend the Foreign Sovereign Immunities Act (FSIA) in order to encourage foreign lending of art to the U.S.

The bill proposes that artwork of cultural significance imported for purposes of temporary exhibition by a cultural institution, and which is in the national interest, will not be considered "commercial activity." That is important because federal law generally protects foreign states from lawsuits except in situations involving "commercial activity."

The concept of "commercial activity" was expanded by the courts in the 2005 case of Malewicz v. City of Amsterdam. That case involved the heirs of Kazimir Malevich who sued Amsterdam in Washington, DC to either recover the artworks that the city’s Stedelijk Museum loaned to American museums or, in the alternative, to receive $150 million in damages. The heirs claimed that the foreign museum unlawfully obtained the paintings.The City of Amsterdam, meanwhile, argued that the Immunity from Seizure Act (IFSA)--not to be confused with the FSIA--protected it from the lawsuit.

IFSA, formally called the Immunity from Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display (22 USC § 2459), protects foreign artwork on temporary loan in America from judicial seizure. It does so by preventing a civil litigant in a U.S. court from claiming the art itself to satisfy a judgment in a lawsuit, for example.

The Malewicz court ruled that Amsterdam had engaged in “commercial activity” under the FSIA. So while IFSA may have protected the actual artwork from seizure, the FSIA did not protect the City of Amsterdam from a damages award, said the court. The FCEICA would correct this contradictory result.

The latest version reintroduces the so-called "Nazi exception," which the bill now words in this fashion:

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]. 

Covered governments are defined as Germany, its allies, Germany's military occupied territories, and cooperating regimes during the period of the Second World War.

The bill has been referred to the Judiciary Committee.

UPDATE 4/3/13
The full committee of the Judiciary quickly held a markup of the legislation, without a hearing, and yesterday approved the bill by voice vote. The measure will now be sent to the full House for consideration.

The Judiciary Committee declared, "By making a minor change to the Foreign Sovereign Immunities Act, this legislation strengthens the ability of U.S. museums and schools to borrow foreign government-owned artwork and cultural artifacts."

A bipartisan statement issued by the bill's Republican and Democratic sponsors announced:

The United States has long recognized the importance of a cultural exchange of ideas through artwork loaned from other countries. We are proud to support this strongly bipartisan legislation that increases Americans’ access to beautiful artwork and artifacts from around the world, fosters knowledge and appreciation of the arts and other cultures, and encourages learning, history and creativity.

UPDATE 5/9/14
The full House passed the bill on May 6 by a vote of 388 to 4.  The bill was sent to the Senate and referred to the Judiciary Committee on May 7.

Photo credit: Micahel Slonecker

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com