First Circuit Rules in Favor of MFA and Harvard in Rubin v. Iran

The First Circuit Court of Appeals on February 27, 2013 decided in favor of the Museum of Fine Arts, Boston (MFA) and Harvard’s museums in the case of Rubin v. Iran.

The case involves victims of a 1997 Iranian-backed terrorist bombing who seek to satisfy a multi-million dollar default court judgment awarded to them in 2003. Since 2005 the Rubin plaintiffs have argued that approximately 2000 reliefs, sculptures, and other archaeological objects located at the MFA and Harvard are the property of Iran that can be seized.  The cultural institutions have been contesting that claim, and yesterday the First Circuit agreed.

The appeals court decision extended its sympathies to the the plaintiffs, saying “we are mindful of the incident that gave rise to the judgment here and the difficulty the plaintiffs are having collecting on that judgment ….”  But the justices upheld “the general rule … that foreign sovereign property in the United States is immune from attachment and execution” because of the Foreign Sovereign Immunity Act (FSIA). 28 U.S.C. § 1609.

The appeals court acknowledged that the Terrorism Risk Insurance Act of 2002 (TRIA) “carves out a narrow exception to that rule, applicable only to ‘blocked assets,’” but wrote that “the plaintiffs have failed to demonstrate that any of the antiquities in the Museums' possession fall within that exception.”

Photo credit: Persepolis by Mira Pavlakovic

The MFA and Harvard argued in the lower federal district court that Iran does not own the cultural objects. Even if they were owned by Iran, the MFA and Harvard maintained that the FSIA makes the objects immune from attachment.

The Rubin plaintiffs countered that “(1) the Museums did not have standing to assert sovereign immunity on behalf of Iran; (2) even if they did, the ‘commercial use’ exception to immunity under the FSIA would apply …; and (3) in any event, the plaintiffs could reach the antiquities under … the Terrorism Risk Insurance Act of 2002 (TRIA), …  which permits the attachment of certain ‘blocked assets of [a] terrorist party.’” In other words, the plaintiffs argued (1) that only Iran itself, not a third party, could claim in court that the archaeological objects at the MFA and Harvard were immune from attachment; (2) that the FSIA made an exception to the rule that foreign property in the U.S. is immune from attachment when that property is used commercially; and (3) that TRIA made an exception to the FSIA rule because “blocked assets” owned by Iran could be seized.

[Sidebar: “Blocked assets” mean property that has been seized or frozen by the U.S. government under the Trading With the Enemy Act or under the International Emergency Economic Powers Act. TRIA allows seizure of blocked assets to satisfy a court judgment “in every case in which a person has obtained a judgment against a terrorist party on a claim based upon an act of terrorism, or for which a terrorist party is not immune under [the FSIA] ….” Of special note is that Iranian “blocked assets” are those under the Iranian Assets Control Regulations (the U.S. Treasury’s Office of Foreign Assets Controls (OFAC) sanctions against Iran) that are uncontested assets, meaning that there is no dispute about whether Iran holds title.]

The federal district court ruled that FSIA's “commercial use” exception did not apply to the case, but that TRIA would apply if the Rubin plaintiffs proved that Iran owned the antiquities in the possession of the MFA and Harvard.

The lower court then transferred three issues to the appeals court for review: the issue of standing, the applicability of TRIA, and the FSIA’s “commercial use” exception.  But the First Circuit appeals court sent the case back to the district court, explaining that it would hear the matter only after the district court decided who owned the cultural objects.  Once the district court in Boston found that the Rubin plaintiffs failed to show that Iran owned the property, the court of appeals accepted the case.

The litigants then submitted arguments to the First Circuit, summarized by Wednesday’s appeals court’s decision:

“The plaintiffs’ main argument on appeal is that TRIA preempts state property law, and, when read in conjunction with certain Treasury Department regulations, gives the plaintiffs (in their words) the right to levy against ‘any interest of Iran, even if that interest is less than a full ownership interest.’ They further claim that Iran has an interest in the antiquities under Iranian law that is sufficient to make them attachable under TRIA.

“The Museums, for their part, counter that TRIA does not displace the traditional rule that a judgment creditor may execute only against assets that a judgment debtor owns, and that the district court was correct in concluding that Iranian law does not vest title to the antiquities in Iran. However, the Museums also challenge the district court's finding that the antiquities qualify as ‘blocked assets’ within the meaning of TRIA—a prerequisite for that statute to apply. See TRIA § 201(a). Finally, the Museums urge us to find that, even if Iran owns the antiquities and they are theoretically attachable under TRIA, the plaintiffs' claim is barred under Massachusetts law by the three-year statute of limitations and the Museums' adverse possession of the objects.”

[Sidebar: The MFA and Harvard asserted that they could legally claim title to the cultural objects—if Iran did, in fact, own them—by claiming adverse possession. Adverse possession is the process of dispossessing another of their property legally, and without compensation, through hostile, open, notorious, exclusive, and continuous possession.]

“Also before us is the position of the United States Department of the Treasury's Office of Foreign Assets Control (OFAC), which is responsible for administering and enforcing economic and trade sanctions, including promulgating the regulations at issue here. The United States has filed an amicus brief articulating OFAC's views regarding two aspects of this case. First, OFAC urges us to find that TRIA authorizes the attachment only of those assets that are owned by the relevant terrorist party. Second, providing its own interpretation of the Treasury Department regulations, OFAC argues that the antiquities are not ‘contested’ within the meaning of those regulations, which, if correct, would make TRIA inapplicable here.”

Notwithstanding the complex legal issues briefed by the parties and, at times, the peculiar oral argument made before the three justice panel, the appeals court simply held:

“Because we agree with OFAC that the antiquities are not ‘contested,’ and thus conclude that they cannot qualify as ‘blocked assets’ under TRIA, we need not reach the broader questions of whether TRIA preempts state law, what kind of ownership interest suffices for an asset to be attachable under TRIA, whether Iranian law vests title to these antiquities in Iran, or whether the plaintiffs' claims are foreclosed by the Massachusetts statute of limitations or the adverse possession doctrine.”

The court went on to write, “We therefore defer to OFAC's reasonable position that an asset can be ‘contested’ for purposes of [Iranian Assets Control Regulations] only if Iran itself has claimed an interest in the asset … Iran has never made such a claim with regard to the antiquities in the Museums' possession. Thus, even if we assume that those antiquities qualify as ‘assets of’ Iran under section 201(a) of TRIA, they would be ‘uncontested’ assets that were unblocked in 1981 … Because the plaintiffs have relied on no other authority to support their claim that the antiquities are ‘blocked’ within the meaning of TRIA, we conclude that the antiquities are not attachable under [TRIA].”

The First Circuit’s decision may be appealed by the Rubin plaintiffs to the U.S. Supreme Court. Meanwhile, trial preparations continue in the federal district court in Chicago. That case, involving the plaintiffs' efforts to attach ancient Iranian artifacts located at Chicago's Field Museum and the University of Chicago, was restarted after the U.S. Supreme Court in June 2012 declined to hear the Rubin plaintiffs' appeal of the Seventh Circuit's ruling against them.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com

Plaintiffs-Appellants in Rubin v. Iran File Reply Brief in First Circuit

"The Plaintiffs successfully obtained judgment against Iran and seek to execute that judgment—pursuant to federal law—against Iranian assets held by the Trustees-Appellees (“Garnishees”). The Garnishees, wealthy museums represented by aristocratic law firms, have sought to stop the Plaintiffs, claiming that the exercise of federal law is somehow unfair to them—that they are above the law." So begins the reply brief filed on behalf of Jenny Rubin and others affected by a 1997 terrorist attack that held Iran liable for damages.  The appellees in the case of Rubin v. Iran are the museums at Harvard and the Boston Museum of Fine Arts (MFA), which house Persian artifacts that are sought after by the plaintiffs-appellants to satisfy a money judgment they were awarded by a federal court against Iran.

The Rubin plaintiffs-appellants appealed to the U.S. First Circuit in March 2012 after losing their case in federal district court.  The museums filed appellate briefs on May 31, 2012, and the United States government submitted a friend of the court brief in June 2012 in support.  Now the Rubin plaintiffs-appellants have entered their response.

The litigation has become complicated, involving technical legal issues and multiple courts.  Highlights of the arguments put forward by the plaintiffs-appellants follow.

First, the plaintiffs-appellants argue that there is a legal basis to award them the artifacts in the collections of the museums under the Foreign Sovereign Immunities Act (FSIA) 28 U.S.C. §1610(g) even if Iran does not own the property.  The museums, they say, have waived their right to challenge the conclusion that plaintiffs-appellants can execute judgment.

Second, the plaintiffs-appellants charge that the museums' "failure to engage in due diligence" cause the institutions to "suffer at their own hands."  That is because, as the plaintiffs-appellants write, the museums "are not 'innocent third parties' (Gov’t 12; Harvard 26, 63; MFA 60) or 'innocent property owners' (Gov’t 17). They are, in some cases, successors in interest to thieves. In other cases, the provenance of their artifacts is simply unknown . . . . Garnishees did no due diligence (or have deliberately hidden the results of their due diligence) in reliance on a three-year statute of limitations and a three-year rule for adverse possession. (Harvard 47, 49-51). Now they have discovered that the state statute of limitations and adverse possession rules are not ironclad and are subject to federal preemption and beg this court for cover."  As a result, the Rubin plaintiffs-appellants say that this "decision not to insist upon documentation—or to ignore and discard the documentation that they received—opens them to recapture by the property’s rightful owner or, as in this case, another party that claims a primary statutory interest." (footnote omitted)

Third, the First Circuit Court should wait to issue a decision until the Second Circuit Court rules on other cases that involve the FSIA and the Terrorism Risk Insurance Act (TRIA), two laws applicable to the Rubin v. Iran case.  The plaintiffs-appellants argue that "[t]he cases squarely present before the Second Circuit the scope of TRIA and FSIA without all of the extraneous complications in [Rubin v. Iran] pertaining to factual questions about the provenance of the Property, the question of whether the Property are rightly considered 'blocked assets' for purposes of TRIA, and the proper interpretation of Iranian domestic law."

Fourth, the Rubin plaintiffs-appellants contend that their case can be resolved in their favor under either FSIA or TRIA: "Plaintiffs request that this Court either resolve this dispute pursuant to [FSIA] §1610(g) or remand for further proceedings under §1610(g). If this Court chooses not to do so, it should grant Plaintiffs the relief requested pursuant to TRIA."

Fifth, the Rubin plaintiffs-appellants say that if the First Circuit decides the case on the basis of TRIA, then the museums hold the burden of proof regarding ownership of the artifacts in their possession, not the plaintiffs-appellants.  They write in their brief that the museums "have argued repeatedly that Plaintiffs have the burden of proving that Iran owns the assets at issue in this litigation and that Plaintiffs have not met that burden. (Harvard 21, 31, 41-46; MFA 12-14, 25-35). They ignore that the reason that conclusive evidence is lacking is because Garnishees cannot document the provenance of their artifacts."  The plaintiffs-appellants submit that they have presented evidence of the artifacts "have presented adequate evidence showing where the Property originated, approximately when it was taken from those locations, and the long history of pillaging that occurred in those locations. Plaintiffs have likewise presented adequate evidence showing—at very least—that the Iranian government retains title or a right to immediate possession of all artifacts that it has not gifted or sold to others."

Finally, the plaintiffs-appellants criticize the museums' argument that TRIA would prompt "an unconstitutional taking of private property."  They write, "Their arguments are frivolous."

The case will continue to move forward in the coming weeks.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at http://culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Contact: www.culturalheritagelawyer.com

Solicitor General Tells U.S. Supreme Court to Reject Rubin v. Iran Case

Solicitor General Donald B. Verrilli, Jr.

Saying that the Seventh Circuit Court of Appeals got it right, the U.S. Solicitor General told the Supreme Court last week to reject the case of Rubin v. Iran.


Lawyers for Jenny Rubin and other injured litigants who won a judgment against Iran for its sponsorship of a 1997 terrorist attack have been trying to collect a multi-million dollar court award by attempting to seize ancient Persian artifacts located at the Oriental Institute at the University of Chicago and the Chicago Field Museum.  The Seventh Circuit on March 29, 2011 sent the case back to the federal district court in Illinois for review. But the Rubin plaintiffs instead sought review by the nation's highest court.  See here for more background.

The U.S. Supreme Court responded in February 2012 by asking the Solicitor General (the U.S. government's attorney specifically assigned to the Supreme Court) to file an opinion. Solicitor General Donald B. Verrilli, Jr. filed an amicus curiae brief (friend of the court brief) arguing that the Rubin plaintiffs' petition for certiorari (e.g. review by the supreme court) "should be denied" because the appeals court correctly ruled on the matter. The full brief may be found here.

For more about the parallel case in the First Circuit click here.

CONTACT: www.culturalheritagelawyer.com
(c) Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC

Rubin v. Iran: Harvard Art Museums and Boston Museum of Fine Arts File Appellate Briefs in First Circuit

"The order of the district court should be affirmed."  That is the simple conclusion written in the Harvard Art Museums' appellate brief filed yesterday in the case of Rubin et al. v. Islamic Republic of Iran v. Museum of Fine Arts and Harvard University et al.  The appeal is pending in the U.S. Court of Appeals for the First Circuit.

The Boston Museum of Fine Arts
Source: Alex Feldstein.  CC.

The Boston Museum of Fine Arts (MFA) also filed an appellate brief. The museum argues that "[a]llowing Plaintiffs to execute on property long held and owned by an innocent third party, the MFA, does nothing to punish Iran," they write.

Jenny Rubin and other appellants filed an appeal with the First Circuit in March, contending that a federal district court in Massachusetts was wrong when it dismissed their attempt to attach Iranian cultural artifacts located in Boston area museums. The objects include eight stone reliefs from ancient Persepolis and two Luristan bronzes now at Harvard, as well as 977 artifacts acquired by the MFA through scientific expeditions during the 1930s at Rayy and Persepolis. Nearly 2000 artifacts in total are at issue in the First Circuit case.

Rubin and others filed a lawsuit in 2001 in the United States District Court for the District of Columbia and won a court judgment against Iran for its sponsorship of a terrorist attack in Jerusalem in 1997.  In order to collect the money owed to the appellants, the Rubin parties sought to attach Iranian assets in the United States.  They attempted to seize ancient Iranian artifacts housed at Harvard's museums as well as the Museum of Fine Arts (MFA) in Boston, but the effort failed in the district court. That is why the appellants filed an appeal.  Harvard and the MFA object.

Harvard's attorneys say this case "should never have been brought" against the Busch-Reisinger Museum, the Fogg Art Museum, Harvard University, the Harvard University Art Museums, the Peabody Museum of Archaeology and Ethnology, the President and Fellows of Harvard College, the Sackler Museum and the Semitic Museum.  They argue in a lengthy brief that the Rubin appellants "failed to prove that any Harvard artifact belongs to Iran." Harvard asserts that the claim by Rubin and others "fails because it rests on a meritless legal premise—that Iranian law ever gave Iran title to any object."

The MFA, meanwhile, criticizes the Rubin appellants/plaintiffs because they "have conceded that they have no evidence at all that Iran owns a single object at the MFA. Rather, Plaintiffs effectively contend that the possibility that some of the objects may have been illegally removed from Iran decades ago somehow allows Plaintiffs to attach the objects now as if they were property of Iran." "Allowing Plaintiffs to take property from the MFA to which Iran has no valid claim would force the MFA, not Iran, to pay for Iran’s misdeeds," the museum's lawyers complain.

The MFA's legal counsel argues that "the District Court correctly ruled that Iranian Law does not vest Iran with ownership of any of the objects" in its collection. The museum adds that cultural objects specifically not subject to attachment are at least 319 artifacts found outside Iran before November 3, 1930; 107 cultural objects excavated outside Iran's borders; at least nine artifacts made after 1779; scientifically excavated material dug up from Rayy as part of the Joint Expedition to Iran funded by the MFA and the University Museum at the University of Pennsylvania; and items from the Persepolis Expedition sponsored by the Oriental Institute at the University of Chicago, the University of Pennsylvania, and the MFA.

Both Harvard and the MFA take the appellants to task for claiming that Iran maintains a "regulatory" interest in Persian cultural objects.  The lawyers opine that a mere regulatory interest in property is not enforceable in an American court.  To enforce a regulatory interest would amount to "an unconstitutional taking of property," Harvard's counsel writes.

Harvard's attorneys add that the lower district court "correctly ruled that Iranian law does not vest Iran with ownership of the artifacts."  The MFA make a similar argument.  The two institutions maintain that the Rubin appellants cannot bring a legal action to dispute the ownership of ancient Iranian artifacts because such a claim is barred by a three year statute of limitations.

Harvard and the MFA, in any case, claim that they own the artifacts in their collections by adverse possession. "Even if Harvard did not acquire ownership of the objects by gift or purchase—and it did—Harvard acquired title to the objects by adverse possession."  The MFA says as well: "Here, because Iran has never made any claim of ownership to works in the MFA, despite knowledge for many decades that the MFA’s collection included numerous antiquities that originated in Iran, any such claim is time-barred. And because of the MFA’s well-known possession of such antiquities for those decades, the MFA has acquired title to the objects under the doctrine of adverse possession, also barring any claim of ownership by Iran."

Adverse possession is a legal doctrine that awards title of property to a possessor who maintains hostile, open, notorious, exclusive, and continuous possession of the property over a specified period of time. "Harvard’s possession has undisputedly been open and notorious, adverse, and exclusive and continuous for the three-year statutory period," argue its lawyers.

Alternatively, Harvard's attorneys maintain that "if the antiquities belong to Iran, they are immune from execution under" the Foreign Sovereign Immunity Act (FSIA).  The MFA joins Harvard's argument. Harvard's attorneys point out that FSIA's "commercial activity" exception does not apply.   They write that "the objects are not subject to the FSIA’s 'commercial activity' exception, because Iran never used them for a commercial activity in the United States."

The FSIA exception states:

"A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case . . . in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States."

[Author's sidebar: there has been much discussion recently about legislation to clarify the meaning of FSIA's "commercial activity" provision when applied to foreign art and artifacts in the United States.  See "The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (S.2212) Should Be Passed" and "U.S. House Passes Foreign Cultural Exchange Jurisdictional Immunity Clarification Act"].

Harvard's lawyers also write that the Terrorism Risk Insurance Act (TRIA) does not put the objects in the hands of the appellants:  "Nor are the [cultural] objects subject to execution under TRIA’s limited authorization of execution against certain 'blocked assets' of terrorist states." "Congress provided that only blocked assets owned by a terrorist party may be used to satisfy judgments against that party," and the cultural artifacts at Harvard are neither owned by Iran nor "blocked assets," the attorneys argue.  The MFA further argues that the appellant's "interpretation of TRIA leads to a constitutional takings problem."

UPDATE August 2012: The plaintiffs-appellants filed their response to the museums' briefs.

For more on the parallel Seventh Circuit / U.S. Supreme Court case, click here.

CONTACT: www.culturalheritagelawyer.com

The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (S.2212) Should Be Passed

The Decree Stele, loaned by Greece,
is one of many cultural objects
routinely granted immunity by the U.S.
Photo courtesy of US State Dept.

The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (FCEJICA or S.2212) is a good bill worthy of passage.  Its adoption by the U.S. Senate would support international cultural exchange by strengthening our country’s longstanding commitment to promote foreign lending of objects to American museums.  The legislation reaffirms the statutory immunity afforded to imported artwork for the last 35 years, but which has been weakened by the courts.

Foreign lending benefits the American public and provides an important mechanism to supply our country’s museums with documented archaeological artifacts.  In an otherwise sharply divided Congress, it is noteworthy that the bill was sponsored and passed in the House (H.R. 4086) and now sponsored in the Senate by members from both sides of the aisle. 

The proposed bill clarifies the spirit of a federal law in force for over three decades, but weakened in the last few years. Congress in 1965 passed IFSA (formally known as the Immunity from Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display).  Lawmakers passed it because they wanted to promote the importation of art.  They wanted to let foreign art lenders know with certainty that their cultural works would not become entangled in litigation once on American soil.

IFSA’s statutory language specifically protects against potential judicial seizure of imported objects of cultural significance intended for temporary, nonprofit exhibition. The law prevents a civil litigant from seizing temporarily imported fine art to satisfy a judgment in a lawsuit, for example.

The immunity given by IFSA is not automatic.  Nonprofit museums must apply for this immunity when seeking to import foreign cultural objects for temporary exhibit.   Any immunity that may be granted by the President of the United States, through his designee, is specific to the artwork; the immunity does not apply to the museum.

To acquire this immunity, a museum must submit an application to the U.S. Department of State. The application includes a description of the item covered, its provenance, its exhibition location, a description of the object’s cultural significance, and a description of why the temporary exhibition is in the national interest.  With regard to provenance, the State Department asks an applicant to certify that it has “undertaken professional inquiry … into the provenance” and that it either knows, does not know, or does not have reason to know “of any circumstances … that would indicate the potential for competing claims of ownership ….”  If there is reason to know of any potential dispute concerning the object, the applicant must disclose it.  The President then authorizes the State Department “(1) to determine that any work of art or other object to be imported into the United States … is of cultural significance, (2) to determine that the temporary exhibition or display of any such work of art or other object in the United States is in the national interest, and (3) to cause public notices of the determinations referred to above to be published in the Federal Register.”

Since IFSA was passed, many objects from abroad have been immunized from potential seizure.  Several requests already have been granted so far this year.  For example, African objects loaned to the Smithsonian Institution's National Museum of African Arts were granted immunity.  They will be in a special exhibition called “African Cosmos: Stellar Arts.”  The “Decree Stele” from the National Archaeological Museum in Athens, Greece is another object granted immunity.  It will be on loan at the Getty Museum in California through 2015.  Meanwhile, the Jewish Museum in New York obtained immunity for imported pieces that are included in its current exhibition titled “EdouardVuillard: A Painter and His Muses, 1890-1940.”  And the Metropolitan Museum of Art's show titled “The Dawn of Egyptian Art” features pieces immunized by IFSA in February.

Loans promote cultural exchange, which is of vital public benefit.  Cultural exchange enlightens our minds to other civilizations; inspires school children to become archaeologists, historians, and art lovers; causes us to care about our history and heritage; and promotes understanding between citizens of different nations, languages, religions, and races.  The FCEJICA's enactment would continue to promote international cultural exchange by shielding foreign lenders and their art from unforeseen lawsuits, including those that could be frivolous. 

Because cultural exchange through foreign lending is a benefit to all Americans, it is important to eliminate reservations that foreign lenders may have when choosing to exhibit cultural objects in the United States.  Foreign lenders must be encouraged to lend art and artifacts to American museums.  Complete immunity can provide an incentive.   Complete immunity shields both the object loaned and the lender from civil lawsuits in a way that partial immunity cannot.  Indeed, partial immunity is no immunity at all. 

Partial immunity is arguably all the State Department can give under IFSA if one follows the reasoning of the federal district court’s decision in Malewicz v. City of Amsterdam (2005).  That case applied the Foreign Sovereign Immunities Act (FSIA) and undermined IFSA’s immunity.  The FSIA is a law that generally protects foreign states from lawsuits.  The law was interpreted by the Malewicz court to extend jurisdiction over foreign governments when their artwork was displayed in the U.S. even when immunity had been given to the art under IFSA.  That is because the lending of art objects was deemed a “commercial activity.”  The FSIA says that “[a] foreign state shall not be immune from the jurisdiction of courts … in which rights in property taken in violation of international law are in issue and that property … is present in the United States in connection with a commercial activity carried on in the United States by the foreign state … [or an] instrumentality of the foreign state ….”  (italics added). 

In Malewicz, the heirs of Kazimir Malevich sued Amsterdam in federal court in Washington, DC to either recover artworks that the city’s Stedelijk Museum loaned to American museums or to acquire $150 million in damages.  The heirs claimed that the foreign museum unlawfully obtained the paintings.  Amsterdam, meanwhile, argued that IFSA protected it from a lawsuit.  The federal court ruled that Amsterdam had engaged in “commercial activity” under the FSIA by loaning the art to the American institutions.  While IFSA may protect the actual artwork from seizure, the FSIA did not protect Amsterdam from related damages, said the court. 

Congress introduced S. 2212 to restore meaning to IFSA’s immunity, erasing any potential conflict between IFSA and the FSIA.  The bill adds a new section to the FSIA that protects foreign nations and their entities from lawsuits related to loaned cultural objects, excepting Nazi looted art.  This effort to strengthen IFSA is meant to assure foreign lenders that they will not be targets of civil litigation simply because they decide to have their art or artifacts exhibited in the U.S.

Securing foreign lending opportunities for American museums is a goal of IFSA and S.2212, and foreign lending serves to provide one solution to the problem of illegally trafficked antiquities.  We know that undocumented and unscientifically excavated artifacts have ended up in museum collections.  Italy, among other nations, has recovered a number of looted artifacts from prominent institutions across America in recent years. It worked out agreements whereby looted cultural objects were repatriated to the country.  The Italians, in turn, agreed to supply long term loans to museums such as the Metropolitan Museum of Art in New York and the Museum of Fine Arts in Boston.  Adoption of the FCEJICA would serve to strengthen these and similar lending arrangements.

The assurances supplied by S.2212 would give greater comfort to Italy, Turkey, Egypt, Peru, India and other archaeologically rich nations that are willing to supply authentic, untrafficked artifacts of the past to American museums.  Additionally, the FCEJICA would give source nations protection from civil suits when archaeological or ethnological objects are loaned pursuant to Article II recommendations.  Article II recommendations are often outlined when the United States adopts Memoranda of Understanding (MoU) with foreign countries under the Cultural Property Implementation Act (CPIA).  The MoU implements import restrictions covering archaeological and ethnological material in jeopardy, and Article II may say, as in the case of the MoU with Guatemala: “The Government of the Republic of Guatemala shall use its best efforts to facilitate the exchange of its archaeological objects and materials under circumstances that do not jeopardize its cultural patrimony, such as temporary loans for exhibition purposes and scientific examination.” (italics added)

The State Department should always carefully examine IFSA requests that involve ancient artifacts or at-risk cultural objects.  America naturally wants to do its best not to inadvertently immunize illegally dug-up archaeology or fine art stolen during a time of conflict.  Avoiding a situation like the one in the Malewicz case is important.  Statutory language might be adopted by the Senate that would require a reasonable assessment by the State Department of the provenance surrounding suspicious or at-risk objects—like those listed in CPIA bilateral agreements, those contained on ICOM Red Lists, or those that are suspected to have been stolen during times of war.  As described above, the State Department already requires immunity applicants to list information about provenance and potential legal claims surrounding a cultural object so that it can review this information.  Given that a review process already is in place, S.2212 might codify that the State Department shall conduct a reasonable inquiry into both the applicant's provenance investigation and the potential legal liabilities that may be connected with an object before an immunity request is approved.

There is always some language in a bill that can be tweaked, but reaching legislative perfection should not be an obstacle to passage of the FCEJICA in the U.S. Senate.  Lenders need clear and iron-clad notice from America that their artworks or artifacts on loan--or that they themselves--will not be caught up in unexpected and expensive court proceedings simply because they choose to exhibit their artifacts or fine art to Americans.

For additional perspective see Derek Finchman's Illicit Cultural Property.

CONTACT: www.culturalheritagelawyer.com